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Republic SUPREME Manila EN BANC G.R. No.

93177 August 2, 1991

of

the

Philippines COURT

the PNP/INP Detention Center/Jail, petitioners, vs. HON. ANTONIO P. SOLANO, Presiding Judge, Regional Trial Court, Quezon City, Branch 86, CAPTAIN REYNALDO S. RAFAEL, 1 LT SERVANDO A. BAOANAN PN(M), 1 LT. WILFREDO JIMENEZ PAF 1 LT. ATANACIO T. MACALAN JR PMM 2LT ELISEO T. RASCO PC, 2LT JONAS CALLEJA PC, 2LT JAIRUS JS GELVEZON III PMM 2LT JOSELITO CABREROS PMM 2LT MEMEL ROJAS PN(M) and 2LT HERMINIO L. CANTACO PC, respondents. Armando M. Marcelo and Rainier L. Madrid for petitioners Luisito Sanchez, Tiburcio Fusillero, Ericson Aurelio, Levino Valencia, Danilo Arnon Vergel Nacino, Florencio Flores, Benigno Junio and Joey Sarroza. Manuel Q. Malvar for Rafael Galvez and Danny Lim. Manuel E. Valenzuela for Arsenio Tecson Mariano R. Santiago for Alfredo Oliveros. Ricardo J.M. Rivera for Manuel Ison. Castillo, Laman, Tan and Pantaleon for Danilo Pizarro.

B/GEN. JOSE COMENDADOR, B/GEN, MARIELO BLANDO, CAPT. DANILO PIZARRO, CAPT. MANUEL ISON, COL. LUISITO SANCHEZ, LTC. ROMELINO GOJO, LTC. ARSENIO TECSON, LTC. RAFAEL GALVEZ, LTC. TIBURCIO FUSILLERO, LTC. ERICSON AURELIO, LTC. JACINTO LIGOT LTC. FRANKLIN BRAWNER, MAJ. ALFREDO OLIVEROS, MAJ. CESAR DE LA PERA, MAJ. LEUVINO VALENCIA, CAPT. FLORENCIO FLORES, CAPT. JAIME JUNIO, CAPT. DANILO LIM, CAPT. ELMER AMON, CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. GEN. RENATO S. DE VILLA, CHIEF OF STAFF, AFP, THE PTI INVESTIGATING PANEL COMPOSED OF: COL. MANUEL S. MENDIOLA, COL. VIRTUD NORBERTO L. DAGZA MAJ. FELIX V. BALDONADO and MAJ. ESTELITO L. PORNEA and GENERAL COURT-MARTIAL NO. 14 COMPOSED OF: B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA and CAPT. FRANCISCO T. MALLILLIN, respondents. No. 95020 August 2, 1991

Alfredo Lazaro for Romelino Gojo. B/GEN. DEMETRIO CAMUA, COL. HERMIMO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI, COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN, petitioners, vs. HON. MIANO C. ASUNCION, Presiding Judge, Branch 104, REGIONAL TRIAL COURT, Q.C., LTC. JACINTO LIGOT PA., respondents. No. 96948 August 2, 1991 Efren C. Moncupa for All Tecson. B/GEN. JOSE COMENDADOR, B/GEN. MARCELO BLANDO, CAPT. DANILO PIZARRO PN, CAPT. MANUEL ISON PN, LTC. ROMELINO GOJO PN (M), LTC. ARSENIO TECSON PA, LTC. RAFAEL GALVEZ PA, LTC. TIBURCIO FUSILLERO PA, LTC. ERICSON AURELIO PA, LTC. JACINTO LIGOT PA, LTC. FRANKLIN BRAWNER PA, MAJ. ALFREDO OLIVEROS PA, MAJ. CESAR DE LA PENA PN (M): MAJ. LEUVINO VALENCIA PA, CAPT. FLORENCIO FLORES PA, CAPT. JAIME JUNIO PA, CAPT. DANILO LIM PA, CAPT. ELMER AMON PAF CAPT. VERGEL NACINO, and LT. JOEY SARROZA, petitioners, vs. B/GEN. DEMETRIO CAMUA COL. HERMINIO A. MENDOZA, COL. ERNESTO B. YU, COL. ROMEO ODI COL. WILLY FLORENDO, COL. DIONY A. VENTURA, and CAPT. FRANCISCO T. MALLILLIN PRESIDENT AND MEMBERS OF GENERAL COURT-MARTIAL NO. 14, respondents. No. 97454 August 2, 1991 AFP CHIEF OF STAFF LT. GEN. RODOLFO BIAZON, DEPUTY CHIEF OF STAFF MAJOR GEN. ALEXANDER AGUIRRE, PNP DIRECTOR GENERAL MAJOR GEN. CESAR NAZARENO and LT. COL. ALBERTO OLARIO, Commanding Officer of M.M. Lazaro & Associates for respondents Ligot and Ison . Baldomero S.P. Gatbonton, Jr. for Jacinto Ligot. Salvador B. Britanico for Cesar de la Pena. Gilbert R.T. Reyes for Danilo Pizarro. Ponce Enrile, Cayetano, Reyes & Manalastas for petitioners in G.R. No. 93177. The Solicitor General for respondents. Manuel A. Barcelona, Jr. for Jose Comendador. Jonathan B.S. Rebong and Efren C. Carag for Marcelo Blando. Pablito V. Sanidad for Franklin Brawner and Ericson Aurelio.

Failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of your right to submit controverting evidence. CRUZ, J.:p These four cases have been consolidated because they involve practically the same parties and related issues arising from the same incident. The petitioners in G.R. Nos. 93177 and 96948 and the private respondents in G.R. Nos. 95020 and 97454 are officers of the Armed Forces of the Philippines facing prosecution for their alleged participation in the failed coup d' etat that took place on December 1 to 9, 1989. The charges against them are violation of Articles of War (AW) 67 (Mutiny), AW 96 (Conduct Unbecoming an Officer and a Gentleman) and AW 94 (Various Crimes) in relation to Article 248 of the Revised Penal Code (Murder). In G.R. No. 93177, which is a petition for certiorari, prohibition and mandamus, they are questioning the conduct of the Pre-Trial Investigation PTI Panel constituted to investigate the charges against them and the creation of the General Court Martial GCM convened to try them. In G.R. No. 96948, the petitioners, besides challenging the legality of GCM No. 14, seek certiorari against its ruling denying them the right to peremptory challenge as granted by Article 18 of Com. Act No. 408. In G.R. No. 95020, the orders of the respondent judge of the Regional Trial Court of Quezon City are assailed oncertiorari on the ground that he has no jurisdiction over GCM No. 14 and no authority either to set aside its ruling denying bail to the private respondents. In G.R. No. 97454, certiorari is also sought against the decision of the Regional Trial Court of Quezon City in a petition for habeas corpus directing the release of the private respondents. Jurisdictional objections are likewise raised as in G.R. No. 95020. I Before the charges were referred to GCM No. 14, a Pre-Trial Investigation PTI Panel had been constituted pursuant to Office Order No. 16 dated January 14, 1990, to investigate the petitioners in G.R. Nos. 93177 and 96948. The PTI Panel issued a uniform subpoena dated January 30, 1990, individually addressed to the petitioners, to wit: You are hereby directed to appear in person before the undersigned Pre-Trial Investigating Officers on 12 Feb 90 9:00 a.m. at Kiangan Hall, Camp Crame Quezon City, then and there to submit your counter-affidavit and the affidavits of your witnesses, if any, in the pre-trial investigation of the charge/charges against you for violence of AWs _______________. DO NOT SUBMIT A MOTION TO DISMISS. On the same date, the petitioners acknowledged receipt of a copy of the charge sheet, sworn statements of witnesses, and death and medical certificates of victims of the rebellion. At the first scheduled hearing, the petitioners challenged the proceedings on various grounds, prompting the PTI Panel to grant them 10 days within which to file their objections in writing This was done through a Motion for Summary Dismissal dated February 21, 1990. In a resolution dated February 27,1990, the PTI Panel denied the motion and gave the petitioners 5 days from notice to submit their respective counter-affidavits and the affidavits of their witnesses. On March 7, 1990, the petitioners verbally moved for reconsideration of the foregoing denial and the PTI Panel gave them 7 days within which to reduce their motion to writing. This was done on March 14,1990. The petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71, which provides: Art. 71. Charges Action upon. Charges and specifications must be signed by a person subject to military law, and under the oath either that he has personal knowledge of, or has investigated, the matters set forth therein and that the same are true in fact, to the best of his knowledge and belief. No charge will be referred to a general court-martial for trial until after a thorough and impartial investigation thereof shall have been made. This investigation will include inquiries as to the truth of the matter set forth in said charges, form of charges, and what disposition of the case should be made in the interest of justice and discipline. At such investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded after such investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides. (Emphasis supplied.) They also allege that the initial hearing of the charges consisted merely of a roll call and that no prosecution witnesses were presented to reaffirm their affidavits. while the motion for summary dismissal was denied, the motion for reconsideration remains unresolved to date and they have not been able to submit their counteraffidavits. At the hearing of May 15, 1990, the petitioners in G.R. No. 96948 manifested that they were exercising their right to raise peremptory challenges against the president and members of GCM No.14. They invoked Article 18 of Com. Act No. 408 for this purpose. GCM No. 14 ruled, however, that peremptory challenges had been discontinued under P.D. No. 39.

In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He thereupon filed with the Regional Trial Court of Quezon City a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. After considering the petition and the answer thereto filed by the president and members of GCM No.14, Judge Maximiano C. Asuncion issued an order granting provisional liberty to Ligot. On July 28, 1990, Ligot filed an urgent omnibus motion to enforce the order for his release and to declare in contempt the commanding officer of the PC/INP Jail for disobey 'ng the said order. He later also complained that Generals De Villa and Aguirre had refused to release him "pending final resolution of the appeal to be taken" to this Court. After hearing, the trial court reiterated its order for the provisional liberty of Ligot, as well as of intervenors Ltc Franklin Brawner, Lt/Col. Arsenio Tecson and Maj. Alfredo Oliveros, and later of additional intervenors Ltc Romelino Gojo and Capt. Manuel Ison. On August 22, 1990, the trial court rendered judgment inter alia: (a) Declaring, that Section 13, Article III of the Constitution granting the right to bail to all persons with the defined exception is applicable and covers all military men facing courtmartial proceedings. Accordingly, the assailed orders of General Court- Martial No. 14 denying bail to petitioner and intervenors on the mistaken assumption that bail does not apply to military men facing court-martial proceedings on the ground that there is no precedent, are hereby set aside and declared null and void. Respondent General CourtMartial No. 14 is hereby directed to conduct proceedings on the applications of bail of the petitioner, intervenors and which may as well include other persons facing charges before General Court-Martial No. 14. Pending the proceedings on the applications for bail before General Court-Martial No. 14, this Court reiterates its orders of release on the provisional liberty of petitioner Jacinto Ligot as well as intervenors Franklin Brawner and Arsenio Tecson. On February 18, 1991, the private respondents in G.R. No. 97454 filed with this Court a petition for habeas corpuson the ground that they were being detained in Camp Crame without charges. The petition was referred to the Regional Trial Court of Quezon City, where it was raffled to respondent Judge Antonio P. Solano. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release. II The Court has examined the records of this case and rules as follows. It appears that the petitioners in G.R. Nos. 93177 and 96948 were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-

affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. This they did on March 13, 1990. The motion was in effect denied when the PTI Panel resolved to recommend that the charges be referred to the General Court Martial for trial. The said petitioners cannot now claim they have been denied due process because the investigation was resolved against them owing to their own failure to submit their counter-affidavits. They had been expressly warned In the subpoena sent them that "failure to submit the aforementioned counter-affidavits on the date above specified shall be deemed a waiver of (their) right to submit controverting evidence." They chose not to heed the warning. As their motions appeared to be dilatory, the PTI Panel was justified in referring the charges to GCM No. 14 without waiting for the petitioners to submit their defense. Due process is satisfied as long as the party is accorded an opportunity to be heard. If it is not availed of, it is deemed waived or forfeited without violation of the Bill of Rights. There was in our view substantial compliance with Article of War 71 by the PTI Panel. Moreover, it is now settled that "even a failure to conduct a pre-trial investigation does not deprive a general court- martial of jurisdiction." 1 We so held in Arula v. Espino, thus: xxx xxx xxx But even a failure to conduct a pre-trial investigation does not deprive a general courtmartial of jurisdiction. The better accepted concept of pre-trial investigation is that it is directory, not mandatory, and in no way affects the jurisdiction of a court-martial. In Humphrey v. Smith, 336 U.S. 695, 93 L ed 986 (1949), the Court said: We do not think that the pre-trial investigation procedure by Article 70 (The Philippine counter-part is article of war 71, Commonwealth Act 408) can properly be construed as an indispensable pre-requisite to the exercise of the Army General court martial jurisdiction.. The Article does serve important functions in the administration of court-martial procedures and does provide safeguards to an accused. Its language is clearly such that a defendant could object to trial in the absence of the required investigation. In that event the court-martial could itself postpone trial pending the investigation. And the military reviewing authorities could consider the same contention, reversing a court- martial conviction where failure to comply with Article 70 has substantially injured an accused. But we are not persuaded that Congress intended to make otherwise valid court-martial judgments wholly void because pretrial investigations fall short of the standards prescribed by Article 70. That Congress has not required analogous pre-trial procedure for Navy court-martial is an indication that the investigatory plan was not intended to be exalted to the jurisdictional level.

xxx xxx xxx Shortly after enactment of Article 70 in 1920 the Judge Advocate General of the Army did hold that where there had been no pre-trial investigation, court-martial proceedings were void ab initio. But this holding has been expressly repudiated in later holdings of the Judge Advocate General. This later interpretation has been that the pre-trial requirements of Article 70 are directory, not mandatory, and in no way effect the jurisdiction of a court-martial. The War Department's interpretation was pointedly called to the attention of Congress in 1947 after which Congress amended Article 70 but left unchanged the language here under consideration. compensable pre-requisite to the exercise of Army general court-martial jurisdiction A trial before a general court-martial convened without any pretrial investigation under article of war 71 would of course be altogether irregular but the court-martial might nevertheless have jurisdiction. Significantly, this rule is similar to the one obtaining in criminal procedure in the civil courts to the effect that absence of preliminary investigation does not go into the jurisdiction of the court but merely to the regularity of the proceedings. As to what law should govern the conduct of the preliminary investigation, that issue was resolved more than 2 two years ago in Kapunan v. De Villa, where we declared: The Court finds that, contrary to the contention of petitioners, there was substantial compliance with the requirements of law as provided in the Articles of War and P.D. No. 77, as amended by P.D. No. 911. The amended charge sheets, charging petitioners and their corespondents with mutiny and conduct unbecoming an officer, were signed by Maj. Antonio Ruiz, a person subject to military law, after he had investigated the matter through an evaluation of the pertinent records, including the reports of respondent AFP Board of Officers, and was convinced of the truth of the testimonies on record. The charge sheets were sworn to by Maj. Ruiz, the "accuser," in accordance with and in the manner provided under Art. 71 of the Articles of War. Considering that P.D. No. 77, as amended by P.D. No. 911, is only of suppletory application, the fact that the charge sheets were not certified in the manner provided under said decrees, i.e., that the officer administering the oath has personally examined the affiant and that he is satisfied that they voluntarily executed and understood its affidavit, does not invalidate said charge sheets. Thereafter, a "pretrial investigation" was conducted by respondent Maj. Baldonado, wherein, pursuant to P.D. No. 77, as amended by P.D. No. 911, petitioners were subpoenaed and required to file their counter-affidavit. However, instead of doing so, they filed an untitled pleading seeking the dismissal of the charges against them. That petitioners were not able to confront the witnesses against them was their own doing, for they never even asked Maj. Baldonado to subpoena said witnesses so that they may be made to answer clarificatory questions in accordance with P. D, No. 77, as amended by P.D. No. 911.

The petitioners also allege that GCM No. 14 has not been constitute in accordance with Article 8 of the Articles of War because General Order No. M-6, which supposedly convened the body, was not signed by Gen. Renato de Villa as Chief of Staff. Article of War No. 8 reads: Art. 8. General Courts-Martial. The President of the Philippines, the Chief of Staff of the Armed Forces of the Philippines, the Chief of Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority. ... While it is true that General Order No. M-6 was not signed by Gen. De Villa, there is no doubt that he authorized it because the order itself said it was issued "By Command of General De Villa" and it has not been shown to be spurious. As observed by the Solicitor General, the Summary Disposition Form showed that Gen. De Villa, as Chief of Staff, AFP, actually constituted GCM No. 14 and appointed its president and members. It is significant that General De Villa has not disauthorized or revoked or in any way disowned the said order, as he would certainly have done if his authority had been improperly invoked. On the contrary, as the principal respondent in G.R. No. 93177, he sustained General Order No. M 6 in the Comment filed for him and the other respondents by the Solicitor General. Coming now to the right to peremptory challenge, we note that this was originally provided for under Article 18 of Com. Act No. 408 (Articles of War), as amended by Rep. Act No. 242, on June 12, 1948, to wit: Art. 18. Challenges. Members of general or special courts-martial may be challenged by the accused or the trial judge advocate for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. Challenges by the trial judge advocate shall ordinarily be presented and decided before those by the accused are offered. Each side shall be entitled to the peremptory challenge, but the law member of the court shall not be challenged except for cause. The history of peremptory challenge was traced in Martelino v. Alejandro, thus: In the early formative years of the infant Philippine Army, after the passage in 1935 of Commonwealth Act No. 1 (otherwise known as the National Defense Act), except for a handful of Philippine Scout officers and graduates of the United States military and naval academies who were on duty with the Philippine Army, there was a complete dearth of officers learned in military law, its aside from the fact that the officer corps of the developing army was numerically made equate for the demands of the strictly military aspects of the national defense program. Because of these considerations it was then felt that peremptory
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challenges should not in the meanwhile be permitted and that only challenges for cause, in any number, would be allowed. Thus Article 18 of the Articles of War (Commonwealth Act No. 408), as worded on September 14, 1938, the date of the approval of the Act, made no mention or reference to any peremptory challenge by either the trial judge advocate of a court- martial or by the accused. After December 17,1958, when the Manual for CourtsMartial of the Philippine Army became effective, the Judge Advocate General's Service of the Philippine Army conducted a continuing and intensive program of training and education in military law, encompassing the length and breadth of the Philippines. This program was pursued until the outbreak of World War 11 in the Pacific on December 7, 1941. After the formal surrender of Japan to the allies in 1945, the officer corps of the Armed Forces of the Philippines had expanded to a very large number, and a great many of the officers had been indoctrinated in military law. It was in these environmental circumstances that Article of War 18 was amended on June 12,1948 to entitle "each side" to one peremptory challenge, with the sole proviso that "the law member of court shall not be challenged except for cause. On September 27,1972, President Marcos issued General Order No. 8, empowering the Chief of Staff of the Armed Forces to create military tribunals "to try and decide cases of military personnel and such other cases as may be referred to them. On November 7,1972, he promulgated P.D. No. 39 (Governing the Creation, Composition, Jurisdiction, Procedure, and other matters relevant to military Tribunals). This decree disallowed the peremptory challenge, thus: No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced. On June 11, 1978, President Marcos promulgated P.D. No. 1498, or the National Security Code, which was a compilation and codification of decrees, general orders, LOI and policies intended "to meet the continuing threats to the existence, security and stability of the State." The modified rule on challenges under P.D. No. 39 was embodied in this decree. On January 17,1981, President Marcos issued Proc. No. 2045 proclaiming the termination of the state of martial law throughout the Philippines. The proclamation revoked General Order No. 8 and declared the dissolution of the military tribunals created pursuant thereto upon final determination of the cases pending therein. P.D. No. 39 was issued to implement General Order No. 8 and the other general orders mentioned therein. With the termination of martial law and the dissolution of the military tribunals created thereunder, the reason for the existence of P.D. No. 39 ceased automatically. It is a basic canon of statutory construction that when the reason of the law ceases, the law itself ceases.Cessante ratione legis, cessat ipsa lex. This principle is also expressed in the maxim ratio legis est anima: the reason of law is its soul.

Applying these rules, we hold that the withdrawal of the right to peremptory challenge in L P.D. No. 39 became ineffective when the apparatus of martial law was dismantled with the issuance of Proclamation No. 2045, As a result, the old rule embodied in Article 18 of Com. Act No. 408 was automatically revived and now again allows the right to peremptory challenge. We do not agree with the respondents in G.R. No. 96948 that the right to peremptory challenge remains withdrawn under P.D. No. 39. To repeat for emphasis, this decree was itself withdrawn when martial law was lifted on January 17, 1981. Indeed, even if not so withdrawn, it could still be considered no longer operative, having been cast out under the new dispensation as, in the words of the Freedom Constitution, one of the "iniquitous vestiges of the previous regime. The military tribunal was one of the most oppressive instruments of martial law. It is curious that the present government should invoke the rules of that discredited body to justify its action against the accused officers. The Court realizes that the recognition of the right to peremptory challenge may be exploited by a respondent in a court-martial trial to delay the proceedings and defer his deserved Punishment. It is hoped that the accused officers in the cases at bar will not be so motivated. At any rate, the wisdom of Com. Act No. 408, in the light of present circumstances, is a matter addressed to the law-makers and not to this Court. The judiciary can only interpret and apply the laws without regard to its own misgivings on their adverse effects. This is a problem only the political departments can resolve. The petitioners in G.R. Nos. 95020 and 97454 question the propriety of the petition for certiorari and mandamus and the petition for habeas corpus filed by the private respondents with the Regional Trial Courts of Quezon City. It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. The petitioners further contend that under Sec. 9(3) of BP 1 29, the Court of Appeals is vested with "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions." Rather irrelevantly, the petitioners also 4 cite the case of Yang v. Court of Appeals where this Court held that "appeals from the Professional Regulation Commission are now exclusively cognizable by the Court of Appeals. It should be noted that the aforecited provision and the case cited refer to ordinary appeals and not to the remedies employed by the accused officers before the respondent courts. In Martelino, we observed as follows: It is true that civil courts as a rule exercise no supervision or correcting power over the proceedings of courts-martial, and that mere errors in their proceedings are not open to consideration. The single inquiry, the test, is jurisdiction. But it is equally true that in the exercise of their undoubted discretion, courts-martial may commit such an abuse of discretion what in the language of Rule 65 is referred to as "grave abuse of discretion"

as to give rise to a defect in their jurisdiction. This is precisely the point at issue in this action suggested by its nature as one for certiorari and prohibition ... . The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions 5 forhabeas corpus and quo warranto. In the absence of a law providing that the decisions, orders and ruling of a court-martial or the Office of the Chief of Staff can be questioned only before the Court of Appeals and the Supreme Court, we hold that the Regional Trial Court can exercise similar jurisdiction. We find that the right to bail invoked by the private respondents in G.R. Nos. 95020 has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. This much was suggested in Arula, where we observed that "the right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The justification for this exception was well explained by the Solicitor General as follows: The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. Aside from structural peculiarity, it is vital to note that mutinous soldiers operate within the framework of democratic system, are allowed the fiduciary use of firearms by the government for the discharge of their duties and responsibilities and are paid out of revenues collected from the people. All other insurgent elements carry out their activities outside of and against the existing political system. xxx xxx xxx National security considerations should also impress upon this Honorable Court that release on bail of respondents constitutes a damaging precedent. Imagine a scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if the assailed July 25,1990 Order were sustained, on "provisional" bail. The sheer number alone is already discomforting. But, the truly disquieting thought is that they could freely resume their heinous activity which could very well result in the overthrow of duly constituted authorities, including this Honorable Court, and replace the same with a system consonant with their own concept of government and justice. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians.

On the contention of the private respondents in G.R. No. 97454 that they had not been charged after more than one year from their arrest, our finding is that there was substantial compliance with the requirements of due process and the right to a speedy trial. The petition for habeas corpus was directly filed with this Court on February 18, 1991, and was referred to the Regional Trial Court of Quezon City for raffle, hearing and decision. It was heard on February 26, 1991, by the respondent court, where the petitioners submitted the charge memorandum and specifications against the private respondents dated January 30, 1991. On February 12, 1991, pursuant to Office Order No. 31-91, the PTI panel was created and initial investigation was scheduled on March 12, 1991 at 2:00 p.m. On March 20, 1991, the private respondents received the copies of the charges, charge sheets and specifications and were required to submit their counter-affidavits on or before April 11, 1991. There was indeed a delay of more than one year in the investigation and preparation of the charges against the private respondents. However, this was explained by the Solicitor General thus: ... The AFP Special Investigating Committee was able to complete it pre-charge investigation only after one (1) year because hundreds of officers and thousands of enlisted men were involved in the failed coup. All of them, as well as other witnesses, had to be interviewed or investigated, and these inevitably took months to finish. The pre-charge investigation was rendered doubly difficult by the fact that those involved were dispersed and scattered throughout the Philippines. In some cases, command units, such as the Scout Rangers, have already been disbanded. After the charges were completed, the same still had to pass review and approval by the AFP Chief of Staff. While accepting this explanation, the Court nevertheless must reiterate the following admonition: This Court as protector of the rights of the people, must stress the point that if the participation of petitioner in several coup attempts for which he is confined on orders of Adjutant General Jorge Agcaoili cannot be established and no charges can be filed against him or the existence of a prima facie case warranting trial before a military commission is wanting, it behooves respondent then Major General Rodolfo Biazon (now General) to release petitioner. Respondents must also be reminded that even if a military officer is arrested pursuant to Article 70 of then Articles of War, indefinite confinement is not sanctioned, as Article 71 thereof mandates that immediate steps must be taken to try the person accused or to dissmiss the charge and release him. Any officer who is responsible for unnecessary delay in investigating or carrying the case to a final conclusion may even be 6 punished as a court martial may direct. It should be noted, finally, that after the decision was rendered by Judge Solano on February 26, 1991, the government filed a notice of appeal ad cautelam and a motion for reconsideration, the latter was ultimately denied, after hearing, on March 4, 1991. The 48- hour period for appeal under Rule 41, Section 18, of the Rules of Court did not run until after notice of such denial was received by the petitioners on March 12, 1991. Contrary to the private respondents' contention, therefore, the decision had not yet become final and executory when the special civil action in G.R. No. 97454 was filed with this Court on March 12, 1991. III

Regarding the propriety of the petitions at bar, it is well to reiterate the following observations of the Court in Arula: The referral of charges to a court-martial involves the exercise of judgment and discretion (AW 71). A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because, as long as the respondent acted with jurisdiction, any error committed by him or it in the exercise thereof will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. Even an abuse of discretion is not sufficient by itself to justify the issuance of a writ ofcertiorari. As in that case, we find that the respondents in G.R. No. 93177 have not acted with grave abuse of discretion or without or in excess of jurisdiction to justify the intervention of the Court and the reversal of the acts complained of by the petitioners. Such action is indicated, however, in G.R. No. 96948, where we find that the right to peremptory challenge should not have been denied, and in G.R. Nos. 95020 and 97454, where the private respondents should not have been ordered released. ACCORDINGLY, in G.R. No. 93177, the petition is DISMISSED for lack of merit. In G.R. No. 96948, the petition is GRANTED, and the respondents are DIRECTED to allow the petitioners to exercise the right of peremptory challenge under Article 18 of the Articles of War. In G.R. Nos. 95020 and 97454, the petitions are also GRANTED, and the orders of the respondent courts for the release of the private respondents are hereby REVERSED and SET ASIDE. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

The private respondents in G.R. No. 97454 filed with SC a petition for habeas corpus on the ground that they were being detained in Camp Crame without charges. The petition was referred to RTC. Finding after hearing that no formal charges had been filed against the petitioners after more than a year after their arrest, the trial court ordered their release.

Issues: (1) (2) Whether Whether or or not Not there there was a was violation a of denial the of accused due right to process. bail.

Held: NO denial of due process. Petitioners were given several opportunities to present their side at the pre-trial investigation, first at the scheduled hearing of February 12, 1990, and then again after the denial of their motion of February 21, 1990, when they were given until March 7, 1990, to submit their counter-affidavits. On that date, they filed instead a verbal motion for reconsideration which they were again asked to submit in writing. They had been expressly warned in the subpoena that "failure to submit counter-affidavits on the date specified shall be deemed a waiver of their right to submit controverting evidence." Petitioners have a right to pre-emptory challenge. (Right to challenge validity of members of G/SCM) It is argued that since the private respondents are officers of the Armed Forces accused of violations of the Articles of War, the respondent courts have no authority to order their release and otherwise interfere with the court-martial proceedings. This is without merit. * The Regional Trial Court has concurrent jurisdiction with the Court of Appeals and the Supreme Court over petitions for certiorari, prohibition or mandamus against inferior courts and other bodies and on petitions for habeas corpus and quo warranto. The right to bail invoked by the private respondents has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. The right to a speedy trial is given more emphasis in the military where the right to bail does not exist. On the contention that they had not been charged after more than one year from their arrest, there was substantial compliance with the requirements of due process and the right to a speedy trial. The AFP Special Investigating Committee was able to complete the pre-charge investigation only after one year because hundreds of officers and thousands of enlisted men were involved in the failed coup. Accordingly, in G.R. No. 93177, the petition is dismissed for lack of merit. In G.R. No. 96948, the petition is granted, and the respondents are directed to allow the petitioners to exercise the right of peremptory challenge under article 18 of the articles of war. In G.R. Nos. 95020 and 97454, the petitions are also granted, and the

Facts: The petitioners in G.R. Nos. 93177 and 96948 who are officers of the AFP were directed to appear in person before the Pre-Trial Investigating Officers for the alleged participation the failed coup on December 1 to 9, 1989. Petitioners now claim that there was no pre-trial investigation of the charges as mandated by Article of War 71. A motion for dismissal was denied. Now, their motion for reconsideration. Alleging denial of due process. In G.R. No. 95020, Ltc Jacinto Ligot applied for bail on June 5, 1990, but the application was denied by GCM No.14. He filed with the RTC a petition for certiorari and mandamus with prayer for provisional liberty and a writ of preliminary injunction. Judge of GCM then granted the provisional liberty. However he was not released immediately. The RTC now declared that even military men facing court martial proceedings can avail the right to bail.

orders of the respondent courts for the release of the private respondents are hereby reversed and set aside. No costs.

case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the 3 supposed mastermind behind the massacre of the Bucag family. Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second 4 amended information against him. Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State 5 Prosecution's Office appeared for the prosecution. As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the 6 trail judge. Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled 7 court hearings of the case. The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a

Republic SUPREME Manila SECOND DIVISION

of

the

Philippines COURT

G.R. No. 115407 August 28, 1995 MIGUEL P. vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. PADERANGA, petitioner,

REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the 1 Regional Trial Court of Gingoog City, had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large 2 up to the present. In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said

special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were 8 tainted with grave abuse of discretion. Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et 9 al., his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time. On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused 10 from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary 11 surrender. As this Court has put it in a case "it would be incongruous to grant bail to one who is 12 free." The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements 13 14 therefor. Thus, inFeliciano vs. Pasicolan, etc., et al., where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter

filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait 15 for a formal complaint or information to be filed against him as it is available to "all persons" where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant 16 is in the custody of the law. On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the 17 proper authorities. in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et 18 al., should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said expartemotion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgentex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or

merely by his submission to the custody of the person making the arrest. The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president 20 of the Integrated Bar of the Philippines, Misamis Oriental Chapter. In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its 21 personal nature and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable 22 doubt.

19

Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life 23 imprisonment and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or 24 otherwise in the discretion of the court, is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong 25 for the provisional liberty of the applicant. Of course, the burden of proof is on the prosecution to show that 26 the evidence meets the required quantum. Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve 27 the application, since it is equally entitled as the accused to due process. If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in 28 respect of the motion or petition is void. At the hearing, the petitioner can rightfully cross-examine the 29 witnesses presented by the prosecution and introduce his own evidence in rebuttal. When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the 30 prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay 31 evidence, and thus are insufficient to establish the quantum of evidence that the law requires. In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their 32 appearance as collaborating government prosecutors in said criminal case. It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance 33 as collaborating prosecutor in the previous hearing in said case. Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992.

10

Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out: PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO:

By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: Without presenting any further evidence? PROSECUTOR ABEJO:

I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT:

Yes, Your Honor.

34

It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, 36 City Prosecutor of Dagupan City vs.Judge Deodoro Sison, the Court, citing Tucay vs. Domagas, 37 etc., held that where the prosecutor interposes no objection to the motion of the accused, the trial
35

11

court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the 38 special civil action for certiorari should not be instituted beyond a period of the three months, the same to be reckoned by taking into account the duration of time that had expired from the 39 commission of the acts complained to annul the same. ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED.

FIRST DIVISION

[A.M. No. MTJ-00-1321. March 10, 2004]

VICTORY LINER, INC., represented by JOHNNY T. HERNANDEZ, President, complainant, vs. JUDGE REYNALDO B. BELLOSILLO, respondent. DECISION DAVIDE, JR., C.J.: For our resolution is the verified complaint of Victory Liner, Inc. (VLI) against respondent Judge Reynaldo B. Bellosillo, then Presiding Judge of the Municipal Circuit Trial Court (MCTC) of Orani, Bataan, and Acting Presiding Judge of the MCTC of Dinalupihan-Hermosa, Bataan, for gross ignorance of the law, grave abuse of authority, oppression, and inaction on a pending motion. The antecedent facts are as follows: On 2 March 2000, while a Victory Liner bus bearing Plate No. CWF-935 was cruising along the National Highway of Dinalupihan, Bataan, it accidentally hit and fatally injured Marciana Bautista Morales. Marciana died the following day. VLI shouldered all the funeral and burial expenses of Marciana. Subsequently, on 6 March [1] 2000, VLI and the heirs of the victim entered into an Agreement/Undertaking. On 14 March 2000, after payment by VLI of the claims, Faustina M. Antonio, the authorized and designated representative of the heirs of [2] [3] the victim, executed aRelease of Claim and an Affidavit of Desistance in favor of VLI and the driver Reino de la Cruz. However, earlier or on 3 March 2000, two of Marcianas sons Rolando B. Soriano and Jimmy B. Morales, [4] who were also signatories to the Agreement/Undertaking, executed aPinagsamang Salaysay against Reino de la Cruz. On the strength of that document, a criminal complaint was filed with the MCTC of Dinalupihan[5] Hermosa, Bataan, for reckless imprudence resulting in homicide, which was docketed as Criminal Case No. 10512. After preliminary examination, or on 13 March 2000, respondent Judge Bellosillo ordered the immediate issuance of a warrant of arrest against De la Cruz and fixed his bail at P50,000 to be posted in cash. He further directed the Chief of Police of Dinalupihan, Bataan, to immediately impound the bus involved in the accident, [6] which could be released only upon the posting of a cash bond in the amount of P50,000. On 30 March 2000, VLI filed a Manifestation and Motion manifesting that it was depositing to the court under protest a cash bond of P50,000 for the release of its bus. After making the deposit, VLIs counsel presented the receipt issued by the Clerk of Court of MCTC, Dinalupihan, to the Chief of Police of Dinalupihan, Bataan, who then released the bus.
[7]

12

On 4 April 2000, VLI filed with respondents court a petition to declare null and void the order directing it to post bond for the release of its bus. This petition was, however, dismissed for improper venue and lack of jurisdiction. On that same day also, respondent Judge Bellosillo issued an order directing the Chief of Police of Dinalupihan, Bataan, and his deputies and investigators to explain in writing why they should not be held in contempt of court for, and be administratively charged with, having released without a court order the Victory Liner bus involved in Criminal Case No. 10512. Thus, the bus was re-impounded by the police authorities of Dinalupihan, Bataan. Subsequently, on 18 April 2000, respondent Judge acted on VLIs Manifestation and Motion dated 30 [9] March 2000 and issued an order for the release of the bus. On 23 June 2000, VLI filed a verified complaint with the Office of the Court Administrator (OCA) claiming that the respondent (a) is guilty of gross ignorance of the law in impounding its bus and requiring it to post a cash bond for the release of the bus; (b) gravely abused his authority when it revoked the surety bond of one of VLIs driver Edwin Serrano in Criminal Case No. 9373; (c) knowingly rendered an unjust and oppressive order when he increased the bond to P350,000 and required that it be posted in cash; (d) gravely abused his authority when he ordered the police authorities of Dinalupihan, Bataan, to file a case against Reino de la Cruz; and (e) is guilty of inaction or dereliction of duty in failing to resolve, despite the lapse of two months, VLIs petition for the nullification of the order requiring the posting of a cash bond for the release of the bus involved in the accident. Later, VLI filed with the Office of the Chief Justice a verified supplemental complaint against the respondent, which was forthwith indorsed to the OCA. In his comment, respondent Judge Bellosillo explains that in the exercise of his sound discretion and in the greater interest of justice and fair play, he required a cash bond of P50,000 for the release of the policeimpounded vehicle to answer for damages by way of subsidiary liability in case of accuseds insolvency. The requirement of a bond for the release of impounded vehicles involved in reckless imprudence cases is practiced not only by him but by other judges throughout the country. As for his order for the re-impounding of the Victory Liner bus, respondent Judge claims that it was just under the circumstances considering that its prior release was illegal. The payment of cash bond for the release of the impounded vehicle was made by the VLI when respondent Judge was at his official station in the MCTC of Orani-Samal, Bataan. Thus, in his absence, no order could have been issued for the release of the impounded vehicle. If ever said vehicle had to be re-impounded, it was the fault of VLIs counsel, as he was the one who misled the police authorities into believing that with the payment of the bond, the bus could already be released. The respondent justifies the substitution of the surety bond of accused Edwin Serrano in Criminal Case No. 9373 with a cash bond on the strength of the prayer of the prosecutor that the bond be posted in cash in view of the gravity of the offense. The Rules of Court leave to the discretion of trial judges the question of whether a bail should be posted in the form of a corporate surety bond, property bond, cash deposit, or personal recognizance. Having found that Serranos surety bond, which was not even attached to t he information but merely noted on the third page thereof, was in a minimal amount and had expired already, he required a cash bond. He increased the bond after considering that Serrano was a fugitive from justice. Respondent Judge Bellosillo denies that he ordered the police authorities of Dinalupihan to file the criminal case against Reino de la Cruz. He points to (a) the Pinagsamang Salaysay dated3 March 2000 of Rolando B. Soriano and Jimmy B. Morales, which was the basis for the filing of the criminal complaint by the police
[11] [10]

[8]

investigator and; (b) the fact that said criminal complaint filed by the police investigator was duly approved by the Chief of Police. Thus, with these circumstances, it could not be said that he compelled the police authorities into filing the criminal case. As to the charge of dereliction of duty for failure to act on the petition for the nullification of the order requiring a bond for the release of VLIs bus, respondent Judge avers that the same is baseless. Contrary to VLIs contention, he acted on that petition as early as 10 April 2000, which was the date set by VLIs counsel for the [12] hearing of such petition. VLIs counsel did not appear on that date and refused to accept or receive notices of hearing and court orders from court personnel. In his Report and Recommendation, retired Justice Narciso T. Atienza, the OCA Consultant to whom this case was referred by the Court, submits that Judge Bellosillos resignation, which was accepted by the Court En Banc effective 27 March 2002, does not render moot and academic the instant administrative complaint. He finds that the respondent Judge erred in ordering the impounding of the Victory Liner bus and in requiring a cash bond of P50,000 for its release; in fixing an excessive bail bond for Reino de la Cruz in Criminal Case No. 10512; and in increasing the bail bond of Edwin Serrano in Criminal Case No. 9373 unconscionably from P60,000 to P350,000. He then recommends that the respondent Judge be penalized with a fine of P20,000. But for lack of evidence, he exonerates respondent Judge from complainants charge that he compelled the police authorities into filing the criminal case against De la Cruz. As to respondents alleged inaction on VLIs petition to declare null and void the order requiring a bond for the release of the subject bus, Justice Atienza finds that the said petition was resolved on 10 April 2000, right on the day it was submitted for resolution. Likewise, he disregards the additional charges in the supplemental complaint, there being no showing that the respondent received a copy thereof. Justice Atienza also notes that in A.M. No. 00-1293, promulgated on 5 July 2000, respondent Judge was reprimanded for issuing a policy action and an order beyond the scope of his authority; and in MTJ No. 00-1308, promulgated on 16 December 2002, respondent Judge was found guilty of undue delay in rendering a decision and was ordered to pay a fine of P11,000 to be taken from his retirement benefits. He further notes the pending administrative cases against respondent Judge: (1) OCA IPI No. 96-232-MTJ for conduct unbecoming a judge; (2) OCA IPI No. 98-533-MTJ for ignorance of the law, grave abuse of discretion, and gross misconduct; (3) OCA IPI No. 96-203-MTJ for issuing an unjust interlocutory order and gross ignorance of the law; (4)A.M. No. 99-1222 for violation of the constitutional rights to information and to speedy trial; and (5) undocketed cases for unprofessional and ill-mannered conduct, refusing to receive documents, and illegal possession of firearms. Verily, the resignation of respondent Judge Bellosillo does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge ceased to be in office during the pendency of this case. The Court retains its jurisdiction to pronounce the respondent official innocent or guilty of the charges against [13] him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. We agree with Justice Atienza in exonerating the respondent from the charges of inaction on a pending motion and of compelling the police authorities to file a criminal case against De la Cruz. We, however, hesitate to hold the respondent administratively accountable for gross ignorance of the law in ordering (1) the impounding of the vehicle involved in the vehicular accident and (2) the posting of a P50,000 bond for the release of the vehicle, both of which were found by OCA Consultant Atienza to be erroneous. Notably, in its Motion to Resolve, VLI submits that this case presents a good occasion for us to resolve, among other issues, the legality of the imposition by trial judges on bus operators to post bail bond for their

13

impounded vehicles in accident cases, in addition to the bail bond required for the provisional liberty of accuseddrivers. According to VLI, our ruling on this matter would guide trial court judges nationwide in accident cases so that bus operators and their personnel would not be at the mercy of judges like the respondent in this case, who during his incumbency had been requiring vehicle owners involved in accidents to post cash bonds for the release of impounded vehicles. In Lacadin v. Mangino, the respondent Judge therein was sought to be administratively liable for extending the lifetime of a search warrant issued by him. We held that even if he may have committed an error of judgment or an abuse of discretion for such act, he cannot be punished administratively therefor in the absence of proof that he was motivated by ignominy or ill-will. Moreover, we ruled that the administrative case is not the right forum to determine whether the life of a search warrant may be extended by the court upon proper motion filed before the expiration of the 10-day period. Worth noting also is the case of Caas v. Castigador. In that case, an Isuzu trailer truck involved in a vehicular mishap was ordered impounded in an Order of 11 September 1996 of the trial court where the criminal case against its driver was pending. That order was addressed to the Chief of Police of General Trias, Cavite, or any officer of the law. In an earlier order of 14 August 1996, the vehicle owner was required to surrender the truck to the court. Subsequently, on motion of the prosecutor, the trial court declared the vehicle owner guilty of indirect contempt for continued defiance of the 11 September 1996 Order. However, upon the vehicle owners petition, we found respondents order holding the petitioner therein guilty of indirect contempt to be highly improper for several reasons. But we did not pass upon the issue of the legality of the impounding of the vehicle involved in the vehicular accident. We did not declare the order for the impounding of the vehicle to be illegal or unauthorized. If it were so, it could have been one of the several reasons for admonishing the respondent Judge therein. In the same vein, this administrative case is not the right forum to determine the issue of the legality of respondents order requiring VLI to post a cash bond for the release of its impounded vehicle. VLI should have raised that issue in the proper courts and not directly to us, and much less by way of an administrative [16] case. There is after all a hierarchy of courts. As we have said inSantiago v. Vasquez, the propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking a ruling directly from us must [17] be put to a halt. It must be recalled that on 4 April 2000, VLI filed with respondent judges court a Petition to Declare Order [18] Directing Victory Liner, Inc., to Post Bond for the Release of the Bus Null and Void. In that petition, VLI submitted that there is no legal basis for the order directing the impounding of the bus and the posting by the [19] bus owner of a cash bond for its release, and hence that order is void ab initio. However, despite notice, VLIs [20] counsel Atty. Reynaldo R. Romero did not appear on 10 April 2000, the schedule for the hearing of that [21] [22] petition as set by him. The respondent thereupon issued an order dismissing the petition outright on grounds of improper venue and lack of jurisdiction, and ordering that a copy of the said order be furnished VLIs counsel at his given address. However, VLIs counsel reportedly refused to accept or receive from court personnel notices of hearing and court orders. And, according to respondent Judge, he (VLIs counsel) never [23] appeared and continued not to appear before the respondent for reasons known only to him. VLI cannot, therefore, resurrect that issue directly before us, and much less through a mere verified administrative complaint or motion to resolve. To allow VLI to raise that issue before us and obtain a ruling thereon directly from us through an administrative case would be to countenance a disregard of the established rules of procedure and of the hierarchy of courts. VLI would thus be able to evade compliance with the requirements inherent in the filing of a
[15] [14]

proper petition, including the payment of docket fees. Hence, we shall shun from passing upon that issue in this case. In any event, the absence of a ruling in Caas v. Castigador on the legality of the impounding of vehicles involved in an accident, as well as the foregoing statements of VLI in its Motion to Resolve, implies that there is yet no clear-cut policy or rule on the matter. They would, therefore, negate a finding of gross ignorance of the law or grave abuse of authority on the part of respondent Judge. Moreover, even assuming that the acts of the respondent in ordering the impounding and subsequent re-impounding of the subject vehicle and in requiring the posting of a cash bond for its release were erroneous, as found by OCA Consultant Atienza, such are errors of judgment that cannot be the subject of a disciplinary action absent proof of fraud, dishonesty, corruption, or bad [24] faith. A judge may not be held administratively liable for every erroneous order or decision he renders. To hold otherwise would be to render a judicial office unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in rendering a judgment. For a judge to be held administratively liable for ignorance of the law, it is necessary that the law be sufficiently basic that all [25] that the judge must do is to simply apply it; or that the error must be gross or patent, deliberate and [26] malicious, or incurred with evident bad faith. We, however, find respondent administratively liable for imposing excessive cash bail bonds on accused Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373. The Constitution guarantees to every person under legal custody the right to bail except those charged [27] with offenses punishable with reclusion perpetua when evidence of guilt is strong. Section 9, Rule 114 of the [28] 1985 Rules on Criminal Procedure, as amended, provides that in fixing the amount of bail, the judge must primarily consider the following factors: a) Financial ability of the accused to give bail; b) Nature and circumstances of the offense; c) Penalty for the offense charged; d) Character and reputation of the accused; e) Age and health of the accused; f) The weight of the evidence against the accused; g) Probability of the accused appearing in trial; h) Forfeiture of the bonds; i) The fact that the accused was a fugitive from justice when arrested; and j) The pendency of other cases in which the accused is under bond. The amount of bail should, therefore, be reasonable at all times. It should be high enough to assure the presence of the accused when required, but no higher than is reasonably calculated to serve this [29] purpose. Excessive bail shall not be required. In implementing this mandate, the accuseds financial capability should particularly be considered. What is reasonable to a wealthy person may not be so to a man charged with a like offense. Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is [30] excessive.

14

Moreover, under the 2000 Bail Bond Guide of the Department of Justice (DOJ), crimes of reckless imprudence resulting in homicide and with violation of the Land Transportation and Traffic Code, bail shall [31] be P30,000 regardless of the number of deaths. De la Cruz and Serrano were both charged with the offense of reckless imprudence resulting in homicide. Although permanently employed as drivers of VLI, it could not be said that each was capable of posting a cash bail bond of P50,000 and P350,000, respectively. In fixing such amounts, the respondent apparently did not take into account the gravity of the offense charged and the financial capability of the accused. He thereby willfully disregarded the guidelines under Section 9, Rule 114 of the 1985 Rules on Criminal Procedure, as amended, and the 2000 Bail Bond Guide of the DOJ. In effect, he violated the constitutional right of the accused to bail, as well as the prohibition against excessive bail, making the right, in the words of Justice Jackson, a teasing illusion like [32] a munificent bequest in a paupers will. The bail fixed by the respondent is all the more excessive because it was in the form of cash. The posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying the accuseds constitutional right to bail. On the other hand, a surety bond may be obtained by the accused upon the payment of a relatively small premium. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold is placed in the hands of the court to guarantee the [33] production of the body of the accused at the various proceedings leading to conviction or acquittal. While cash bail is authorized under our rules, the option to deposit cash in lieu of a surety bond primarily [34] belongs to the accused, as can be gleaned from the language of Section 14, Rule 114 of the 1985 Rules on [35] Criminal Procedure, as amended, which read: SEC. 14. Deposit of cash as bail. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court or recommended by the prosecutor who investigated or filed the case, and upon submission of a proper certificate of deposit and of a written undertaking showing compliance with the requirements of Section 2 hereof, the accused shall be discharged from custody. The respondent judge, therefore, grossly erred in converting Serranos surety bond to cash bond and in [36] demanding that De la Cruz post a cash bond to obtain their provisional liberty. It bears repeating that judges should exhibit more than cursory acquaintance with the basic legal norms and precepts, as well as with statutes and procedural rules. As advocates of justice and visible representations of the law, they are expected to keep abreast with the law and jurisprudence, and be proficient in the application and interpretation thereof. When the law or rule is basic, judges owe it to their office to simply apply it; [37] anything less than that is gross ignorance of the law. In light of our current jurisprudence, the respondent should be fined in the amount of P10,000 for his act of imposing on accused De la Cruz and Serrano an excessive bail to be posted in cash in violation of pertinent rules and guidelines, as well as the constitutional right of the accused to bail and the proscription against excessive bail. WHEREFORE, for gross ignorance of the law and oppression in imposing excessive cash bail bonds on Reino de la Cruz in Criminal Case No. 10512 and Edwin Serrano in Criminal Case No. 9373, respondent Judge Reynaldo
[38]

B. Bellosillo is hereby ORDERED to pay a fine of Ten Thousand Pesos (P10,000) to be taken from his retirement benefits. SO ORDERED. Ynares-Santiago, Carpio, and Azcuna, JJ., concur. Panganiban, J., on official leave. Republic SUPREME Manila SECOND DIVISION of the Philippines COURT

G.R. No. 94284 April 8, 1991 RICARDO C. SILVERIO, petitioner, vs. THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City, Branch IX, and PEOPLE OF THE PHILIPPINES, respondents. Quisumbing, Torres & Evangelista for petitioner.

MELENCIO-HERRERA, J.:p This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying reconsideration, be set aside. On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his provisional liberty. On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure Order against accused-petitioner on the ground that he had gone abroad several times without the necessary Court approval resulting in postponements of the arraignment and scheduled hearings.

15

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission on Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was denied on 28 July 1988. Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence, this Petition for Review filed on 30 July 1990. After the respective pleadings required by the Court were filed, we resolved to give due course and to decide the case. Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July 1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments could not be held because there was a pending Motion to Quash the Information; and (2) finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." We perceive no reversible error. 1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is apparent that it was filed long after the filing of the Information in 1985 and only after several arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In fact, said Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and conformed to by respondent Appellate Court is the concurrence of the following circumstances: 1. The records will show that the information was filed on October 14, 1985. Until this date (28 July 1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly due to the failure of accused Silverio to appear. The reason for accused Silverio's failure to appear had invariably been because he is abroad in the United States of America; 2. Since the information was filed, until this date, accused Silverio had never appeared in person before the Court; 3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been issued against him all for the same reason failure to appear at scheduled arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more than enough consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu, p. 5; Rollo, p. 73). Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a Motion to Quash came about only after several settings for arraignment had been scheduled and cancelled by reason of Petitioner's non-appearance. 2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that the right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest of national security, public safety or public health." To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as amended, Rule 114, Secs. 1 and 2). The foregoing condition imposed upon an accused to make himself available at all times whenever the Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court where the case is pending (ibid., Sec. 20 [2nd par. ]). Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable impairment of the right to travel only on grounds of interest of national security, public safety or public health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions. Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision. Article III, Section 1(4) thereof reads: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired. The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

16

The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the interest of national security, public safety, or public health (Article IV, Section 5). The 1987 Constitution has split the two freedoms into two distinct sentences and treats them differently, to wit: Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on the grounds of "national security, public safety, or public health." The submission is not well taken. Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel may be impaired even without Court Order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso & Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121). Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135, Section 6, Rules of Court). Petitioner's argument that the ruling in Manotoc, Jr., v. Court of Appeals, et al. (supra), to the effect that the condition imposed upon an accused admitted to bail to make himself available at all times whenever the Court requires his presence operates as a valid restriction on the right to travel no longer holds under the 1987 Constitution, is far from tenable. The nature and function of a bail bond has remained unchanged whether under the 1935, the 1973, or the 1987 Constitution. Besides, the Manotoc ruling on that point was but a re-affirmation of that laid down long before in People v. Uy Tuising, 61 Phil. 404 (1935). Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of

the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Court Orders and processes. WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio. SO ORDERED. EN BANC

[G.R. No. 126995. October 6, 1998]

IMELDA R. MARCOS, petitioner, vs. The Honorable SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, respondents. RESOLUTION PURISIMA, J.: This scenic Philippine archipelago is a citadel of justice, due process and rule of law. Succinct and clear is the provision of the constitution of this great Republic that every accused is presumed innocent until the contrary is proved. [Art. 111, Sec. 14(2)]. As held in People of the Philippines vs. Ellizabeth Ganguso y Decena (G.R. No 115430, November 23, 1995, 250 SCRA 268, 274-275): An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged. So also, well-settled, to the point of being elementary, is the doctrine that when inculpatory facts are susceptible to two or more interpretations, one of which is consistent with the innocence of the accused, the evidence does not fulfill or hurdle the test of moral certainty required for conviction. (People of the Philippines vs. Eric F. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373 citing People vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248; People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562;People vs. Salangga, 234 SCRA 407)

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Mindful of and guided by the aforecited constitutional and legal precepts, doctrines and principles prevailing in this jurisdiction, should petitioners Motion for Reconsideration be granted? Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(g) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, alleges: That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro -Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. CONTRARY TO LAW. The case was raffled off to the First Division of the Sandiganbayan, with Presiding Justice Francis E. Garchitorena, as Chairman and Justices Jose S. Balajadia and Narciso T. Atienza, as members. On September 15, 1993, when the First Division failed to comply with the legal requirement of unanimity of its three members due to the dissent of Justice Narciso T. Atienza, Presiding Justice Garchitorena issued Administrative Order No. 28893 constituting a Special Division of five and designating Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members. On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena requesting that he be given fifteen (15) days to send in his Manifestation. However, on the same day, September 21, 1993, when Justice Balajadia and Presiding Justice Garchitorena agreed with the opinion of Justice Del Rosario, Presiding Justice Garchitorena issued Administrative Order No. 293-93, dissolving the Special Division of Five, without waiting for Justice Amores manifestation. Justice Garchitorena considered the said request of Justice Amores as pointless because of the agreement of Justice Balajadia and the undersigned to the conclusion reached by Justice Atienza. Thus, on September 24, 1993, the now assailed decision was handed down by the First Division of the Sandiganbayan. Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr. with a violation of Section 3(g) of RA 3019, the following elements of the offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject Contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the government. There is no dispute that sometime in the year 1984, the herein petitioner, Imelda R. Marcos, was Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of Transportation and Communication. The two served as ex oficio Chairman and Vice Chairman, respectively, of the Light Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of the Board of Trustees of the Philippine General Hospital Foundation, Inc. (PGHFI).

On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI, and Jose P. Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement (Exhibit B) by virtue of which LRTA leased to PGHFI subject lot with an area of 7,340 square meters, at a monthly rental of P102,760.00 for a period of twenty-five (25) years. On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and Transnational Construction Corporation, represented by its President Ignacio B. Gimenez, signed the Sub-lease Agreement (Exhibit D), wherein said lessee rented the same area of 7,340 square meters for P734,000.00 a month, for a period of twenty-five (25) years. For executing the aforesaid Lease Agreement (Exhibit B), petitioner and Jose P. Dans, Jr. were indicted in the said Information, for conspiring and confederating with each other in entering into subject Lease Agreement alleged to be manifestly and grossly disadvantageous to the government. After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and Jose P. Dans, Jr. of the offense charged. On June 29, 1998, the Third Division of this court came out with its decision affirming the judgment, as against petitioner Imelda R. Marcos, in G.R. No. 126995, but reversing the same judgment, as against Jose P. Dans, Jr., in G.R. No. 127073. In affirming the judgment of conviction against petitioner, the Third Division found the rental price stipulated in the Lease Agreement, (Exhibit B) unfair and unreasonably low, upon a comparison with the rental rate in the Sub-lease Agreement (Exhibit D), which contract petitioner subsequently signed on behalf of PGHFI, with TNCC. Undaunted, the petitioner interposed the present Motion for Reconsideration. The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit B as a public officer? As clearly stated on the face of the subject contract under scrutiny, petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as exofficio Vice-Chairman of LRTA. Although petitioner was the ex-officio Chairman of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the Lease Agreement sued upon. In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting. It bears stressing, in this connection, that Jose P. Dans, Jr., the public officer who signed the said Lease Agreement (Exhibit B) for LRTA, was acquitted. As regards the second element of the offense - that such Lease Agreement is grossly and manifestly disadvantageous to the government, the respondent court based its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease Agreement is P734,000.00. After comparing the two rental rates aforementioned, the respondent court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the government. But Exhibit B does not prove that the said contract entered into by petitioner is manifestly and grossly disadvantageous to the government. There is no established standard by which Exhibit Bs rental provisions

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could be adjudged prejudicial to LRTA or the entire government. Exhibit B standing alone does not prove any offense. Neither does Exhibit B together with the Sub-lease Agreement (Exhibit D) prove the offense charged. At most, it creates only a doubt in the mind of the objective readers as to which (between the lease and sub-lease rental rates) is the fair and reasonable one, considering the different circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA nor the Government suffered any injury. There is, therefore, insufficient evidence to prove petitioners guilt beyond reasonable doubt. Verily, it is too obvious to require an extended disquisition that the only basis of the respondent court for condemning the Lease Agreement (Exhibit B) as manifestly and grossly disadvantageous to the government was a comparison of the rental rate in the Lease Agreement, with the very much higher rental price under the Sub-lease Agreement (Exhibit D). Certainly, such a comparison is purely speculative and violative of due process. The mere fact that the Sub-lease Agreement provides a monthly rental of P734,000.00 does not necessarily mean that the rental price of P102,760.00 per month under the Lease Agreement (Exhibit B) is very low, unreasonable and manifestly and grossly disadvantageous to the government. There are many factors to consider in the determination of what is a reasonable rate of rental. What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was inked, the rental rate therein provided was based on a study conducted in accordance with generally accepted rules of rental computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate appraiser who testified in the case as an expert witness and whose impartiality and competence were never impugned, assured the court that the rental price stipulated in the Lease Agreement under scrutiny was fair and adequate. According to him, witness, the reasonable rental for subject property at the time of execution of Exhibit B was only P73,000.00 per month. That the Sub-lease Agreement (Exhibit D) was for a very much higher rental rate of P734,000.00 a month is of no moment. This circumstance did not necessarily render the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous to the government. Not even a single lease contract covering a property within the vicinity of the said leased premises was offered in evidence. The disparity between the rental price of the Lease Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the prosecution, that the Lease Agreement in question is manifestly and grossly disadvantageous to the government. Gross is a comparative term. Before it can be considered gross, there must be a standard by which the same is weighed and measured. All things viewed in proper perspective, it is decisively clear that there is a glaring absence of substantiation that the Lease Agreement under controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution. Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate of P734,000.00 a month, did not result in any disadvantage to the government because obviously, the rental income realized by PGHFI from the Sub-lease Agreement (Exhibit D) augmented the financial support for and improved the management and operation of the Philippine General Hospital, which is, after all, a government hospital of the people and for the people. Another sustainable ground for the granting of petitioners motion for reconsideration is the failure and inability of the prosecution to prove that petitioner was present when the Board of Directors of LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex oficio chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there is no evidence whatsoever to show

that she attended the board meeting of LRTA which deliberated and acted upon subject Lease Agreement (Exhibit B). It is thus beyond cavil that petitioner signed the said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and not as a public officer. Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot be viewed as an act of the former. Petitioner is only answerable for her own individual act. Consequently, petitioner not having signed Exhibit B as a public officer, there is neither legal nor factual basis for her conviction under Section 3 (g) of Rep Act 3019. It bears repeating that apart from the Lease Agreement and Sub-lease Agreement marked Exhibits B and D, respectively, the prosecution offered no other evidence to prove the accusation at bar. What makes petitioners stance the more meritorious and impregnable is the patent violation of her right to due process, substantive and procedural, by the respondent court. Records disclose that: (a) the First Division of the Sandiganbayan composed of Presiding Justice Garchitorena and Associate Justices Balajadia and Atienza could not agree on whether to convict or acquit the petitioner in the five (5) criminal cases pending against her. Justice Atienza was in favor of exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452. Justices Garchitorena and Balajadia wanted to convict her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there there was no unanimity of votes in Criminal Case Nos. 17451 and 17452; (b) on September 15, 1993, in accordance with Sec. 5 of P. D. No. 1606, Presiding Justice Garchitorena issued Adm. Order No. 288-93 constituting a Special Division of five (5) justices, and naming thereto, Justices Augusto M. Amores and Cipriano A. del Rosario; (c) on September 21, 1993, Justice Amores sent a written request to Presiding Justice Garchitorena asking that he be given fifteen (15) days to submit his Manifestation; (d) on the same day, September 21, 1993, however, Presiding Justice Garchitorena and Justices Balajadia and del Rosario, after attending a hearing of the Committee of Justice of the House of Representatives, lunched together in a Quezon City restaurant where they discussed petitioners cases in the absence of Justices Atienza and Amores and in the presence of a non-member of the Special Division. Thereat, Presiding Justice Garchitorena, and Justices Balajadia and del Rosario agreed with the position of Justice Atienza to acquit petitioner in Criminal Case Nos. 17449, 17451 and 17452 and to convict her in the other cases; and (e) when the Justices returned to the official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order No. 293-93 dissolving the Special Division. Such procedural flaws committed by respondent Sandiganbayan are fatal to the validity of its decision convicting petitioner for the following reasons, viz: First. Section 4, Rule VI categorically provides that sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila where it shall tryand determine all cases filed with it x x x. This rule reiterates Sec. 2 of P.D. No. 1606, as amended, creating the Sandiganbayan. Second, The rules of Sandiganbayan do not allow unscheduled discussion of cases. We take judicial notice of the procedure that cases in all courts are carefully calendared and advance notices are given to judges and justices to enable them to study and prepare for deliberation. The calendaring of cases cannot be the subject of anybodys whims and caprices. Third. The rules of Sandiganbayan do not also allow informal discussion of cases. The deliberations in case at bar did not appear on record. The informal discussion of the three justices came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled Response, revealed for the first time the informal discussion of

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petitioners cases at an unnamed restaurant in Quezon City. There is no way to know how the discussion was conducted as it was not minuted. Fourth. The rules of the Sandiganbayan do not allow the presence of a non-member in the deliberation of cases. In the case at bar, a certain justice was present when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioners cases while taking their lunch in a Quezon City restaurant. Fifth. The rules of the Sandiganbayan do not allow the exclusion of a member of a Division, whether regular or special, in the deliberation of cases. Justices Atienza and Amores were members of the Special Division but were not present when petitioners cases were discussed over lunch in a Quezon City restaurant. They were not notified of the informal, unscheduled meeting. In fact, Justice Amores had a pending request for 15 days to study petitioners cases. In effect, Atienza and Amores were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner. These irregularities violated the right of petitioner to be tried by a collegial court. Under PD No. 1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted except upon the vote of three justices, regardless of whether her cases are before a regular division of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three (3) justices is the process by which they arrive at their vote. It is indispensable that their vote be preceded by discussion and deliberation by all the members of the division. Before the deliberation by all, any opinion of a justice is but tentative and could be changed. It is only after all the justices have been heard should the justices reach a judgment. No one opinion can be denigrated in importance for experience shows that an opinion that starts as a minority opinion could become the majority opinion after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its members. In the case at bar, Presiding Justice Garchitorena had already created the Special Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the First Division. At that stage, petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the persons of Justices Amores and del Rosario who may have a different view of the cases against her. At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested right to the opinion of Justices Amores and del Rosario. It may be true that Justice del Rosario had already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated by law. But what is more, petitioner was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena dissolved the Special Division. We reject the rationalization that the opinion of Justice Amores was of de minimis importance as it cannot overturn the votes of the three justices convicting the petitioner. This is a mere guesswork. The more reasonable supposition is that said opinion could have changed the opinions of the other justices if it is based on an unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the petitioner despite a better opinion. Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the acquittal of the petitioner, that opinion will have an added value when petitioner appeals her conviction to this Court. Again, depending on its scholarship, that minority opinion could sway the opinion of this Court towards the acquittal of petitioner.

Prescinding from those premises, it is indisputable that the decision of the First Division of the respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and procedural due process of law. It is opined, however, that this case should be remanded to the respondent Sandiganbayan for re-decision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal of an accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy. But the present case deserves a different treatment considering the great length of time it has been pending with our courts. Records reveal that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years passed but petitioners prosecution is far from over. To remand the case to the Sandiganbayan will not sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution assures all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. This right expands the right of an accused to have a speedy, impartial, and public trial x x x in criminal cases guaranteed by Section 14(2) of Article III of the Constitution. It has a broadening effect because Section 16 covers the periods before, during and after trial whereas Section [1] 14(2) covers only the trial period. Heretofore, we have held that an accused should be acquitted when his right to speedy trial has been violated. Thus, in the early 1936 case of People vs. Castaeda, et al. 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held: A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five (5) years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had been confined in prison from July 20, 1932 to November 27, 1934 for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused to come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Riveraand Unson, 45 Phil., 650). We reiterated this rule in Acebedo vs. Sarmiento , viz:
[2]

2. More specifically, this Court has consistently adhered to the view that a dismissal based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at continuing the prosecution or starting a new one would fall within the prohibition against an accused being twice put in jeopardy. The extensive opinion of Justice Castro in People vs. Obsania noted earlier made reference to four Philippine decisions, People vs. Diaz, People vs. Abao, People vs. Robles, and People vs. Cloribel. In all of the above case, this Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the disregard of his right to a speedy trial was tantamount to an acquittal. In People vs. Diaz, it was shown that the case was set for hearing twice and the prosecution without asking for postponement or giving any explanation failed to appear. In People vs. Abao, the facts disclosed that there were three postponements. Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case was absent, this Court held that respondent Judge was justified in dismissing the case upon motion of the defense and that the annulment or setting aside of the order of dismissal would place the accused twice in jeopardy of punishment for the same offense. People vs. Robles likewise presented a picture of witnesses for the

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prosecution not being available, with the lower court after having transferred the hearings on several occasions denying the last plea for postponement and dismissing the case. Such order of dismissal, according to this Court is not provisional in character but one which is tantamount to acquittal that would bar further prosec ution of the accused for the same offense. This is a summary of the Cloribel case as set forth in the above opinion of Justice Castro. In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held, that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants insistence on their constitutional right to speedy trial and by reason of the prosecutions failure to appear on the date of trial. (Italics supplied) There is no escaping the conclusion then that petitioner here has clearly made out a case of an acquittal arising from the order of dismissal given in open court. The rationale for both Section 14(2) and section 16 of Article III of the Constitution is the same: justice delayed is justice denied. Violation of either section should therefore result in the acquittal of the accused. There are other reasons why the case should not be remanded to the court a quo. Three justices of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice Garchitorenas [3] undue interference in the examination of witness Cuervo revealed his bias and prejudice against petitioner. As Mr. Justice Francisco observed the court questions were so numerous which as per petitioner Dans count totaled 179 compared to prosecutor Querubins questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading, and baseless hypothetical questions rolled into [4] one. Mr. Justice Franciscos opinion was concurred by Mr. Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice Franciscos observations on the lack of impartiality of Presiding Justice Garchitorena. They disregarded Mr. Ramon F. Cuervos testimony and based the conviction of petitioner purely on the documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same evidence has been passed upon by the Third Division of this Court in formulating its judgment of affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand the case for a Special Division of five of the Sandiganbayan to render another decision in the case, with respect to the herein petitioner. I consider this opinion incomplete without quoting herein the following portion of the concurring and dissenting opinion of former Associate Justice Ricardo J. Francisco dated January 29, 1998: Thus, purely from the legal standpoint, with the evident weakness of the prosecutions case and the procedural aberrations that marred the trial, it is simply unsound and impossible to treat differently each petitioner who found themselves in one and the same situation. Indeed, our regained democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it expects that government efforts in going after the plunderers of that dark past remain unrelenting and decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal justice system is not a popularity contest where freedom and punishment are determined merely by the fame or infamy of the litigants. The scales of justice, it has been [5] aptly said, must hang equal and, in fact, should even be tipped in favor o f the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever

his present circumstance and no matter how dark and repellent his past. Culpability for crimes must always take its bearing from evidence and universal precepts of due process - lest we sacrifice in mocking shame once again the very liberties we are defending. IN VIEW OF THE FOREGOING, the Motion for Reconsideration under consideration is hereby GRANTED and petitioner Imelda R. Marcos is hereby ACQUITTED of the offense charged. Costs de oficio. SO ORDERED. Facts: This is a petition for certiorari to set aside as arbitrary and in grave abuse of discretion resolutions of the Sandiganbayan's First Division denying petitioner's motion for leave to travel abroad for medical treatment. The former first lady Imelda Marcos was found guilty by the First Division of the Sandiganbayan of violating 3 of the Anti Graft and Corrupt Practices Act. After conviction she filed a "Motion for Leave toTravel Abroad" to seek diagnostic tests and treatment by practitioners of oriental medicine in China allegedly because of "a serious and life threatening medical condition" requiring facilities not available in the Philippines that was denied. Then she again filed an "Urgent Ex-Parte Motion for Permission to Travel Abroad" to undergo diagnosis and treatment in China. This was supported by several medical reports that were prepared by her doctor Roberto Anastacio. Again another Motion to leave was filed by Mrs. Marcos to US and Europe for treatment of several Heart diseases alleging that the tests were not available here. The presiding justice, Garchitorena, contacted Dr. Gregorio B. Patacsil, Officer-in-Charge of the Philippine Heart Center, and later wrote him a letter, asking for "expert opinion on coronary medicine". The court still found no merit to allow the petitioners motion to leave and denied all of the motions. Petitioner filed a motion for reconsideration and a "Motion to Admit Clinical Summary and to Resolve Motion for Reconsideration." Attached was a recent medical report and letters of Vice President Joseph E. Estrada offering to be guarantor for the return of petitioner and those of twenty four members of the House of Representatives requesting the court to allow petitioner to travel abroad. This was also denied by the Court also stating their express disapproval of the involvement of the VP and the Cabinet members so as to influence the resolutions, decisions or orders or any judicial action of respondent court.

Issue: Whether or Not the Sandiganbayan erred in disallowing the Motion for Leave to Travel Abroad because it (1) disregarded the medical findings (2) it motu propio contacted a third party asking the latter to give an opinion on petitioner's motion and medical findings (3) said that there was no necessity to get medical treatment abroad.

Held: No. The contention of the petitioner that was invalid to contact a third party asking the latter to give an opinion on petitioner's motion and medical findings was erroneous. Respondent court had to seek expert

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opinion because petitioner's motion was based on the advice of her physician. The court could not be expected to just accept the opinion of petitioner's physician in resolving her request for permission to travel. What would be objectionable would be if respondent court obtained information without disclosing its source to the parties and used it in deciding a case against them. In disregarding the medical reports, the petitioner failed to prove the necessity for a trip abroad. It should be emphasized that considering the fact that she is facing charges before the courts in several cases, in two of which she was convicted although the decision is still pending reconsideration, petitioner did not have an absolute right to leave the country and the burden was on her to prove that because of danger to health if not to her life there was necessity to seek medical treatment in foreign countries. On the third issue, the Court ordered petitioner to undergo several tests which summarily states that the required medical treatment was available here in the Philippines and that the expertise and facilitieshere were more than adequate to cater to her medical treatment. The heart ailments of the petitioner were not as severe as that was reported by Dr. Anastacio. Wherefore, the petitioner is Dismissed without prejudice to the filling of another motion for leave to travel abroad, should petitioner still desire, based on her heart condition. In such an event the determination of her medical condition should be made by joint panel of medical specialists recommended by both the accused and the prosecution.

For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the [1] Regional Trial Court of Pasig City and was sentenced to four years and two months of prision correccional, as minimum, to eight years of prision mayor as maximum, in addition to one (1) year for each additional [2] P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years. He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17, 1999. After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused-Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with [3] prior notice to the court and private complainant. Petitioner filed a Reply, contending that the proposed bail of P5,500,000.00 was violative of his right against excessive bail. The assailed resolution of the Court of Appeals , issued on October 6, 1999, upheld the recommendation of the Solicitor General; thus, its dispositive portion reads: WHEREFORE, premises considered, the Motion to Fix Bail For Provisional Liberty of Accused -Appellant Pending Appeal is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz.: (1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court; (2) The Commission of Immigration and Deportation (CID) is hereby directed to issue a hold departure order against accused-appellant; and The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for safekeeping until the court orders its return; Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellants bail bond, the dismissal of appeal and his immediate arrest and confinement in jail.
[5] [4]

THIRD DIVISION

[G.R. No. 141529. June 6, 2001] (3) (4)

FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. DECISION GONZAGA-REYES, J.: The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad.

SO ORDERED.

A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition. Petitioner sets out the following assignments of error: The respondent Court of Appeals committed grave abuse of discretion in fixing the bail for the provisional liberty of petitioner pending appeal in the amount of P5.5 million.

22

The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional liberty of the petitioner on his civil liability. The respondent Court of Appeals unduly restricted petitioners constitutional liberty of abode and travel in imposing the other conditions for the grant of bail. Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, [6] equivalent to the amount of bail he posted during the trial of the case. On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been established that petitioner was in possession of a valid passport and visa and had in fact left the country several times during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his business transactions and had several abodes in different parts of the country. As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals requires is notice in case of change of address; it does not in any way impair petitioners right to change abode for as long as the court is apprised of his change of residence during the pendency of the appeal. Petitioners case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states: SEC. 5. Bail, when discretionary. --- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the [7] adverse party. There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for humanitarian reasons, and despite a perceived high risk of flight, as by petitioners admission he went out of the countr y several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00. The prohibition against requiring excessive bail is enshrined in the Constitution. The obvious rationale, as [9] declared in the leading case of De la Camara vs. Enage, is that imposing bail in an excessive amount could [10] render meaningless the right to bail. Thus, in Villaseor vs. Abao, this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions. xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, a promise to the ear to be broken to the hope, a [11] teasing illusion like a munificent bequest in a paupers will. xxx At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail: (a) (b) (c) (d) Financial ability of the accused to give bail; Nature and circumstances of the offense; Penalty for the offense charged; Character and reputation of the accused;
[8]

23

(e) (f) (g) (h) (i) (j)

Age and health of the accused; Weight of the evidence against the accused; Probability of the accused appearing at the trial; Forfeiture of other bail; The fact that the accused was a fugitive from justice when arrested; and Pendency of other cases where the accused is on bail.

should be cancelled. In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had [19] been in fact convicted by the trial court. In an earlier case, the Court adopted Senator Vicente J. Franciscos disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to [20] attempt to escape if liberated on bail than before conviction. xxx Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --- the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable. Petitioner also contests the condition imposed by the Court of Appeals that he secure a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court, claiming that the same violates his liberty of abode and travel. Notably, petitioner does not question the hold-departure order which prevents him from leaving the [21] Philippines unless expressly permitted by the court which issued the order. In fact, the petition submits that the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to [22] require him to inform the court every time he changed his residence is already unnecessary. The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as [23] contemplated by the above provision. The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so.

[18]

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to [12] make an accounting of his movements. In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him. Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioners right to bail. The purpose for bail is to guarantee the appearance of the accused at the trial, or whenever so required [14] by the court The amount should be high enough to assure the presence of the accused when required but no [15] higher than is reasonably calculated to fulfill this purpose. To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00) is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. At the same time, we cannot yield to petitioners submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, merits attention, being in a sense an expression of policy of the Executive Branch, through the [16] Department of Justice, in the enforcement of criminal laws. Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal [17] justice. This notwithstanding, the Court is not precluded from imposing in petitioners case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal in non-capital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted
[13]

24

WHEREFORE, the petition is PARTIALLY GRANTED. Petitioners bail pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs. SO ORDERED. Yap Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur vs. CA

ALBINA BORINAGA, complainant, vs. JUDGE CAMILO E. TAMIN, Regional Trial Court, Branch 23, Molave, Zamboanga del Sur, respondent.

REGALADO, J.: In a sworn letter-complaint dated November 20, 1992 filed by Albina Borinaga, herein respondent Judge Camilo E. Tamin of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23 was charged with grave incompetence and ignorance of the law in connection with Criminal Case No. 92-10-300 for murder, entitled "People vs. Antonio Ruaya, et al.," which is now pending before said court. On January 26, 1993, this Court required respondent judge to file his comment and, upon receipt thereof, the matter was referred to the Office of the Court Administrator for evaluation, report and recommendation. On July 28, 1993, Deputy Court Administrator Juanito A. Bernad submitted a 2 memorandum with the corresponding evaluation and recommendation, duly approved by the Court Administrator. The records show that an amended criminal complaint for murder dated March 4, 1992, or the killing of herein complainant's husband, Regino Borinaga, was filed by the Chief of Police of Dumingag, Zamboanga del Sur against Antonio Ruaya, alias Tony Ruaya; Roberto J. Rada, alias Totoy; Edwin Rada, alias Negger; and Jojo Valenzuela before the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, Zamboanga del Sur, for preliminary investigation. It appears that while the case was pending with the said lower court, a petition for bail dated March 25, 1992 was filed by one of the accused, Antonio Ruaya, before respondent Judge Camilo E. Tamin in Branch 23 of the Regional Trial Court of Molave where it was docketed as Special Civil Case No. 92-50,005. In said petition, accused Ruaya averred that he was a detention prisoner at the Municipal Jail of Dumingag, Zamboanga del Sur; that he was charged with murder; that no bail was fixed by the investigating judge who issued a warrant of arrest against him; that he had waived the second stage of the preliminary investigation, with a reservation to challenge the criminal action against him; and that the evidence of guilt against him was not strong, hence he was entitled to bail as a matter of right. Accused Ruaya prayed that the bail be fixed at P20,000.00. In an order dated March 25, 1992, respondent judge ordered the public prosecutor "to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner for the crime charged (is) strong." At the scheduled hearing, the public prosecutor failed to appear, by reason of which respondent judge issued an 6 order dated March 30, 1992, granting bail to accused Ruaya in the amount of P20,000.00 and holding that: Under Section 13 of Article III of our Constitution it (is) provided that "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."
5 4 3 1

Facts: The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad. For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa and was sentenced to four years and two months of prision correccional, as minimum, to eight years of prision mayor as maximum, in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years. He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings.

Issue: Was the condition imposed by the CA on accuseds bail bond violative the liberty of abode and right to travel?

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

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

A.M. No. RTJ-93-936 September 10, 1993

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Under this provision of law, if the prosecutor fails to present evidence that the guilt of the accused is strong, then the accused would be entitled to the constitutional right to bail. No evidence have (sic) been introduced by the prosecution to prove that the guilt of the accused of the crime charged is strong. Necessarily, this court find (sic) that the accused is entitled to bail under Section 13, Article III of our Constitution. WHEREFORE, finding that the accused has the right to bail, the provisional liberty of the accused is set at P20,000.00 bail (sic) as prayed for in the petition. On the same day, March 30, 1992, Judge Dionisio C. Arriesgado of the 27th Municipal Circuit Trial Court of Dumingag-Mahayag, who conducted the preliminary investigation, issued a resolution recommending the filing of an information for murder against, among others, Antonio Ruaya, after said accused failed to file his counteraffidavit and other evidence in his defense. The resolution was affirmed by the Provisional Prosecutor, as a consequence of which an information for murder was later filed against all the accused with no bail recommended. Subsequently, the public prosecutor, together with complainant's counsel, filed a "Motion to Cancel Bailbond (sic) and to Arrest the Accused," on the ground that said accused is charged with a capital offense, the evidence of guilt is strong, and no bail was recommended in the information. However, on October 7, 1992, respondent Judge issued an order denying said motion without conducting a hearing thereon. In his comment, wherein he essayed his position on the controversy and which we quote at length to demonstrate his line of thought and mode of ratiocination, respondent judge averred: 1. That on March 25, 1992, accused Antonio Ruaya filed a petition for bail with the court of respondent in SPL Civ. Case No. 40,013 (sic), a true copy of which, together with the annexes, are hereto attached as Annexes "1" to "1-I", based on the ground that the evidence of guilt is not strong. 2. That on the date of receipt of said petition, the respondent issued an order, a true copy whereof is attached as annex "2", requiring the public prosecutor to appear on March 30, 1992 at 8:30 in the morning to present evidence that the guilt of the petitioner-accused for the crime charged is strong. A copy of this order was actually received by the Office of the Public Prosecutor on March 27, 1992. The respondent also noted that the office of the Public Prosecutor was likewise served with a copy of the said petition for bail, on March 25, 1992 by the petitioner-accused; 3. That on March 30, 1992, at the hearing of the petition for bail, the Public Prosecutor did not appear. It did not also send any public prosecutor, despite the fact that the office of the Provincial Prosecutor of Zamboanga del Sur had plenty of public prosecutors. Neither was there also any request to reset the hearing of the petition for bail to another date; 4. That for failure to present any evidence of guilt against the petitioner-accused, the respondent issued his order, dated March 30, 1992, a true copy of which is hereto attached

as annex "3", finding that the petitioner-accused has the constitutional right to bail, and set the bail bond for the provisional liberty at P20,000, as prayed for in the petition; 5. That on the same day, March 30, 1992, the petitioner-accused posted a cash bond of P20,000 for his provisional liberty; 6. That before proceeding further with his comment, the respondent would like first to state the following relevant facts: 6.1) That the accused Antonio Ruaya has not jump (sic) bail but has been present in court every time his case is called and is asking for a speedy hearing of the criminal charge against him; 6.2) The the only evidence against the accused Antonio Ruaya is the extra-judicial statement of his co-accused Roberto J. Rada, alias "Totoy" who, when duly arraigned in open court with the assistance of counsel, entered a plea of not guilty; 6.3) That as the co-accused Roberto J. Rada, cannot be compelled to testify in court, the prosecutor (both the public and private prosecutor) admitted in open court that the prosecution does not have any admissible evidence against the accused Antonio Ruaya; 6.4) That the co-accused Roberto J. Rada, the only witness against the accused Antonio Ruaya, is a prisoner convicted for life for the commission of robbery with homicide (a crime involving moral turpitude) in Valencia, Bukidnon, and presently serving sentence at the Davao Prison and Penal Farm, Panabo, Davao del Norte; 6.5) That the respondent is particularly wary of uncorroborated statements of prisoners, specially of those convicted for life, because it is notoriously easy to let a prisoner sign any document for a fee as low as P100; 6.6) That considering the prevailing depressed economic condition in his judicial district, the respondent has adopted as a standard for granting bail at the rate of P1,000 for every year of probable imprisonment for common crimes, except when the offenses involved kidnapping for ransom, rebellion and prohibited drugs, in which cases, the respondent set the bail bond at P10,000 for every probable years (sic) of imprisonment. The respondent has consistently adhered to this standard in other cases situated, which standard is also followed by other Regional Trial Courts in the area;

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6.7) That co-accused Edwin Rada, alias "Negger", subsequently also filed a similar petition for bail which was not opposed by the prosecution, and so the respondent likewise granted bail to said accused, also in the amount of P20,000; 7. That when the petition for bail was filed by accused Ruaya with the court of the respondent, the said accused has already waived his right to the second stage of the preliminary investigation, leaving nothing further to be done by the municipal trial court but the performance of the ministerial duty to forward the case to the office of the Provincial Prosecutor with its recommendations; 8. That as alleged in the ninth paragraph of the letter-complaint, the case against the accused Ruaya was forwarded to the Office of the Provincial Prosecutor on March 30, 1992, with the recommendation to file an information for murder against said accused. In other words, the case against accused Ruaya was no longer pending preliminary investigation in the municipal court on March 30, 1992, when the respondent granted bail to said accused in his order on the same day (Annex "3"); 9. That the prosecution is making much of its argument in paragraph 4 and 9 of the complaint that the respondent granted bail when the case against the accused Ruaya was "still under preliminary investigation" in the Municipal Trial Court. The prosecution was given the opportunity to put up said argument on March 30, 1992 when it was ordered by the respondent to appear and present evidence that the guilt of the accused was strong. But despite due notice, the prosecution did not appear and thereby forfeit (sic) the opportunity to invoke said argument. The failure of the prosecution to invoke the aforesaid argument at the proper opportunity given to it constitute (sic) a waiver on its part to invoke the said argument and it is legally already under estoppel to rely on the same; 10. That not only did the prosecution not file a written opposition to, or a request to postpone the hearing of the application for bail, it did not even honor the hearing of the petition with its presence, despite the fact, that there are plenty of prosecutors in the office of the Provincial Prosecutor. Clearly, the prosecution was remissed (sic) in the performance of its duty and now it is asking the respondent to be punished because it (prosecution) failed to do its duty properly; 11. That it is now too late and unfair for the prosecution to invoke the argument that the respondent granted bail when the case was still under preliminary investigation in the lower court. It is too late because the prosecution is under estoppel and has already effectively waived to invoke (sic) said argument when it chose not to appear in the hearing of the petition for bail despite due notice given to it. The said argument is clearly an afterthought and the prosecution should be the one to suffer the consequences of its own negligence and not pass the matter unfairly to the respondent. It is unfair, because after the court has conferred upon the accused the right to bail at the proper hearing with due notice, the right to bail becomes thereafter a vested constitutional right which is already beyond the power and authority of the respondent to recall unless there is a violation of the condition of the

bail. The respondent, therefore, cannot recall the right already vested, even if he wants to, without violating the right of the accused to due process. The prosecution did not then give the respondent an opportunity to rule upon said argument at the proper time before the right to bail becameirrevocably vested upon (sic) the accused. The actuations of the prosecution is (sic) nothing else but laying (sic) in ambush at and stabbing the respondent at the back after the prosecution neglected to perform its duty properly. 12. That contrary to the misinterpretation in paragraph 8 of the complaint, the MOTION TO CANCEL BAILBOND AND TO ARREST THE ACCUSED, dated September 22, 1992 was properly heard by the respondent on September 22, 1992, and the prosecution even submitted its MEMORANDUM, dated October 5, 1992. However, since the motion involved purely a question of law, particularly, as to whether or not, the right to bail given to an accused charged for murder, pursuant to the provisions of sections 5, 6, 7 and 8 of Rule 114 of the Rules, can still be recalled by the court after its conferral, the respondent resolved the same in the negative under its order of October 7, 1992, and which is attached as Annex "A" to the instant complaint; 13. That judicial remedy exists to correct any error of judgment committed by the respondent; 14. That it is unkind for the counsel of the complaint (sic) to make the gratuitous, barb (sic) and snipping (sic) remark that the respondent is the counsel of the accused. Respondent vehemently denies it. The respondent only acted in accordance with what he then saw as the 7 right and proper thing to do under the circumstances. (Emphasis supplied.) The 1987 Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong shall, before conviction, be bailable by sufficient sureties or be released on recognizance as may be provided by law. Corollarily, the Rules of Court, under Section 3, Rule 114 thereof, provides that 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. As now revised in the 1985 Rules of Criminal Procedure and provided in Rule 114 thereof, the rules on availability of bail to an accused may be restated as follows: 1. Admission to bail is a matter of right at any stage of the action where the charge is not for a capital offense or 8 is not punishable by reclusion perpetua. 2. Regardless of the stage of the criminal prosecution, no bail shall be allowed if the accused is charged with a 9 capital offense or of an offense punishable by reclusion perpetua and the evidence of guilt is strong; 3. Even if a capital offense is charged and the evidence of guilt is strong, the accused may still be admitted to bail in the discretion of the court if there are strong grounds to apprehend that his continued confinement will

27

endanger his life or result in permanent impairment of health, court; and

10

but only before judgment in the regional trial

4. No bail shall be allowed after final judgment, unless the accused has applied for probation and has not 11 commenced to serve sentence, the penalty and offense being within the purview of the probation law. On the foregoing bases, it is evident that bail is a matter of discretion where the accused is charged with a capital offense or an offense punishable by reclusion perpetua and the evidence of guilt is strong. This precept gains added significance from the fact that the situation it envisages determines the particular court where an application for bail should be filed. Section 14 of Rule 114 pertinently provides: Sec. 14. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or unavailability of the judge thereof, with another branch of the same court within the province or city. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may be filed also with any regional trial court of said place, or, if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. (b) Whenever the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application therefor may be filed only in the particular court where the case is pending whether for preliminary investigation, trial, or on appeal. (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held. (Emphasis ours.) Paragraph (a) allows the accused to post bail in certain specified courts, other than that where his case is pending, under the circumstances stated therein. On the other hand, paragraph (c) allows the detainee to post bail with any court in the province, city or municipality where he is held, if no complainant or information has as yet been filed against him. The situations contemplated under these two provisions of the rules clearly do not obtain in the case at bar. In the present case, accused Ruaya, who applied for bail, was charged with murder in an amended complaint filed before the municipal circuit trial court where he was named as the mastermind, which in all probability is the reason why no bail was recommended by the investigating judge who issued the warrant of arrest against him, in addition to the fact that murder is a capital offense punishable by reclusion perpetua. Perforce, bail in this case is a matter of discretion and the application therefor should have been filed in the court where the preliminary investigation was then pending, that is, before the Municipal Circuit Trial Court of DumingagMahayag, Zamboanga del Sur, pursuant to paragraph (b), Section 14 of Rule 114 above quoted. The reason for the rule is that the court wherein the case against the accused is pending is assumed to be in a better position to pass upon the propriety and conditions for granting bail to the accused, since it is more conversant with the facts of said case and the representations of the prosecution therein. Furthermore, should the accused jump bail, the primary responsibility rests with the court where his case is pending.

Although, as alleged by respondent judge, the order granting the petition for bail was issued on the same day that the preliminary investigation was supposedly terminated in the lower court, this did not cure the infirmity which attended the issuance thereof. Of greater import is the fact that the petition for bail was filed with the regional trial court, as a so-called "special civil case," while the preliminary investigation was still pending before the municipal circuit trial court. Hence, respondent judge had no jurisdiction to entertain the same, as the situation of the accused definitely did not fall under any of those contemplated in paragraphs (a) and (c), Section 14 of Rule 14. Further, respondent judge acted without jurisdiction in taking cognizance of and eventually granting the petition for bail there having been no information filed in his court against the accused-applicant. Actually, it was only on March 30, 1992 when the records of the criminal case were forwarded by the lower court to the Office of the Provincial Prosecutor with the recommendation that an information for murder be filed against accused Ruaya. On the other hand, even assuming arguendo that respondent judge had jurisdiction to hear the petition for bail, under the circumstances attendant to the case he should nonetheless be held liable for granting the same without benefit of a hearing. This requirement is so basic and fundamental that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof. It is true that at the hearing of an application for admission to bail, where admission to bail is a matter of 12 discretion, the prosecution has the burden of showing that evidence of guilt is strong. However, we have held that admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. The prosecution must first be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed against in determining whether the guilt of the accused is strong. In other words, discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after evaluation of the evidence submitted by the prosecution. Any order issued in the absence thereof is not a 13 product of sound judicial discretion but of whim and caprice and outright arbitrariness. Accordingly, while the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion, this discretion, by the nature of things, may rightly be exercised only after the evidence is submitted 14 to the court at such hearing. Whether the motion for bail of an accused who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court may resolve the motion for bail. If the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that 15 ground. Consequent to the foregoing considerations, an order granting or refusing bail must contain a summary of the evidence by the prosecution. On the basis thereof, the judge should then formulate his own conclusion as to whether the evidence so presented is strong enough as to indicate guilt and thereby cause the continued 16 detention of the accused. Otherwise, the accused must be released on bail. In the case at bar, the petition for bail was granted by respondent judge on the simple reason that the prosecution failed to appear and present evidence despite due notice. Forthwith, he concludes that by reason of the failure of the prosecution to appear at the scheduled hearing, the applicant is entitled to bail as a matter of right. He aggravated this flagrant error when in his aforequoted comment, he justified his subsequent denial of

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the prosecution's motion for the cancellation of the bail bond and the arrest of the accused on the incredible theory that the prosecution's failure to appear was a "waiver on its part . . . .and it is allegedly already in estoppel" to challenge the grant of bail since that right to bail "became irrevocably vested" in the accused who had thereby acquired "a vested constitutional right beyond the power and authority of the respondent to recall." In the first place, respondent judge did not have the authority to set the petition for bail for hearing in view of the fact that he had not even acquired jurisdiction over the criminal case since the information therefor had not yet been filed in the trial court. In doing so, he acted with grave abuse of discretion and in wanton disregard of established rules and jurisprudence. Secondly, it has been held that even where the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the state's evidence or judge the adequacy of the amount of 17 bail. Here, the non-appearance of the prosecution at the hearing scheduled by respondent judge on March 30, 1992 was obviously justified since, to repeat, respondent had no authority to schedule and/or conduct the same. It is at once apparent, even from a cursory glance of the assailed order of respondent judge that, to say the least, there is much to be desired. It is utterly defective in form and substance; there is no recital of any evidence presented by the prosecution, much less a conclusion therefrom or a pronouncement therein that the requisite proof of guilt of the accused is not evident. As such, the challenged order of respondent judge cannot be 18 sustained or be given a semblance of validity. Parenthetically, the "vested constitutional right" theory of respondent judge does not merit judicial review and is best disregarded. It is apropos to repeat here what we explicated in the aforecited case of Libarios vs. Dabalos: . . . Generally, a judge cannot be held liable to account, or answer criminally, civilly or administratively, for an erroneous judgment or decision rendered by him in good faith. However, good faith may be negated by the circumstances on record. In the absence of fraud, dishonesty or corruption, the acts of a judge done in his judicial capacity are not subject to disciplinary action, even though such acts may be erroneous. But, while judges should not be disciplined for inefficiency on account merely of occasional mistakes or errors of judgment, yet, it is highly imperative that they should be conversant with basic legal principles. In every case, a judge should endeavor diligently to ascertain the facts and the applicable law unswayed by partisan or personal interests, public opinion or fear of criticism. Respondent judge should not have allowed himself to be swayed into issuing an order fixing bail for the temporary release of the accused charged with murder, without a hearing, which is contrary to established principles of law. A judge owes it to the public and the administration of justice to know the law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. There will be faith in the administration of justice only if there be a belief on the part of litigants that the occupants of the bench cannot justly be accused of deficiency in their grasp of legal principles. (Emphases ours.)

In resum, what stamps this case with a unique feature and makes the actuations of respondent judge more distressing is the fact that, aside from granting bail without a hearing and denying the prosecution procedural due process, such irregularity was committed in connection with a criminal case over which respondent judge had not at that instance acquired jurisdiction. Furthermore, through that unauthorized procedure which he had adopted, respondent judge illegally granted bail not only to accused Ruaya but also to the latter's co-accused, Edwin Rada. On these environmental facts, the sanction to be imposed on respondent judge should not be less than that which we approved in Libarios. WHEREFORE, respondent Judge Camilo A. Tamin is hereby ordered to pay a fine of P20,000.00, with a stringent warning that the commission of a similar offense in the future will be dealt with more severely. This decision is without prejudice to whatever action the public prosecutor may deem appropriate with respect to Criminal Case No. 92-10-300 and Special Civil Case No. 92-50,005. SO ORDERED. Republic SUPREME Manila FIRST DIVISION of the Philippines COURT

G.R. Nos. 101127-31 November 18, 1993 PEOPLE OF vs. CRESENCIA C. REYES, accused-appellant. The Solicitor General for plaintiff-appellee. Timoteo A. David for Oriental Assurance Corporation. Rosendo C. Ramos for accused-appellant. THE PHILIPPINES, plaintiff-appellee,

CRUZ, J.: The appellant has instituted this proceeding for the reversal of the decision of the Regional Trial Court of Manila dated March 12, 1991, convicting her of estafa and violation of BP 22 under five separate informations which had been consolidated and tried jointly on her own motion.

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From the unrebutted evidence of the prosecution, the trial court that complainant Lorie Garcia came to know Cresencia Reyes through Manny Carbrera, a friend and business acquaintance of Garcia, who requested her to deliver rice to Reyes because he had no more stock to sell. Garcia initially refused but eventually agreed to sell to Reyes but only on the condition that Reyes first make a purchase order and, upon delivery, pay 50% of the cost of the rice, the balance to be paid with a postdated check. The first purchase order was for 200 sacks. On April 4, 1986, Garcia delivered to Reyes 100 sacks of rice worth P 31,500.00, for which two checks were issued, each in the amount of P15,750.00. One was dated April 4, 1986 and the other April 10, 1986. On April 9, 1986, Garcia delivered 98 more sacks of rice to Reyes, and Reyes again issued two checks, each in the amount of P14,210.00, the first dated April 10, 1986, and the other April 15, 1986. On April 9, 1986, Reyes placed another order for 200 sacks of rice, which Garcia delivered to her on the same day. While the 200 sacks were being unloaded, Reyes asked to buy an additional 200 sacks, and since there were 400 sacks of rice loaded on the truck, Garcia agreed to sell the whole stock to her. For the 400 sacks (plus 2 more sacks to complete the first purchase order for 200 sacks), Reyes again issued two checks, each for P66,330.00, one dated April 9, 1986 and the other April 15, 1986. All the checks were drawn against the Bank of the Philippine Islands at its Espaa Branch. Of the six checks issued by Reyes, only three were made good, to wit, the check dated April 4, 1986 for P15,750.00, which was encashed by Garcia; the check dated April 10, 1986 for P14,210.00, which was redeemed by Reyes; and the check dated April 9, 1986 for P66,330, which was paid by Reyes by installments. The other three checks were, either upon encashment or deposit, returned by the drawee bank to Garcia due to "insufficient funds." Garcia notified Reyes of their dishonor and the latter promised to pay their total value. Despite repeated demands on Reyes, however, she failed to make good the checks or to replace them with cash The five criminal cases filed against Reyes were Criminal Cases Nos. 86-51206 to 86-51208, for violation of BP 22 1 in connection with the issuance of BPI Check No. 308202 for P5,750, BPI Check No. 308223 for 2 3 P14,210.00, BPI check No. 308226 for P66,330.00, and Criminal Cases Nos. 86-51209 and 86-51210, both for estafa involving the same checks. After the prosecution had rested its case, Reyes manifested through her counsel that she would file a demurrer to evidence. She did not do so during the 10-day period allowed her, whereupon the trial court, on motion of the prosecution, declared the cases submitted for decision. Instead of filing a motion for reconsideration, Reyes, 4 assisted by her counsel, submitted a waiver of appearance. Judge Angelina S. Gutierrez thereafter rendered the challenged decision in which she disposed as follows: ACCORDINGLY, finding the guilt of the accused beyond reasonable doubt, she is hereby sentenced as follows:

In Criminal Case No. 51206, to suffer imprisonment of six (6) months and to pay the fine of P15,750.00; In Criminal Case No. 51207, to suffer imprisonment of six (6) months and to pay the fine of P14,210.00; In Criminal Case No. 51208, to suffer one year imprisonment and to pay the fine of P66,330.00; In Criminal Case No. 51209, to suffer 22 years of reclusion perpetua together with the accessory penalties and to indemnify the complaining witness by way of actual damages in the sum of P80,540.00 and to pay the costs; and In Criminal Case No. 51210, there being no modifying circumstances that attended the commission of the offense, to suffer an indeterminate penalty of six (6) years and 1 day of prision mayor as minimum to 14 years, 8 months and 1 day of reclusion temporal as maximum together with the accessory penalties and to indemnify the complaining witness by way of actual damages in the sum of P15,750.00 and to pay the costs. On May 13, 1992, the First Division referred en consulta to the Court en banc the question of whether the appellant, having been sentenced to serve 22 years of reclusion perpetua, should be allowed to remain on bail 5 during the pendency of her appeal. On August 7, 1992, the Court en banc ordered the surrender of Reyes by her bondsman to the Regional Trial Court of Manila, Branch 37, for her confinement by the Bureau of 6 Corrections. In the appellant's brief, it is alleged that the trial court committed grave errors: (1) In convicting Reyes of estafa and violation of BP 22 when on the face of the evidence itself it is clear that the issuance of the checks in question was involved in a credit transaction and that the said checks were issued by the latter as guarantee for the payment of her civil obligation to the complainant; (2) In holding her guilty of estafa under Art. 315, par. 2(d) of the Revised Penal Code when there was no deceit employed by her in the issuance of the checks in question; (3) In holding that there was sufficient evidence her to justify her conviction for estafa under Art. 315, par. 2(d) of the Revised Penal Code and for violation of BP 22; and (4) In convicting her for the crime of estafa under Art. 315, par. 2(d) of the Revised Penal Code for having issued a bad check, even if the check had been issued in payment of a preexisting obligation.

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The Court, after deliberating on the above assignment of errors and the briefs submitted by the parties, finds for the People. We re-affirm at the outset the established doctrine that: While the filing of the two sets of Information under the provisions of Batas Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as amended, on estafa, may refer to identical acts committed by the petitioner, the prosecution thereof cannot be limited to one offense, because a single criminal act may give rise to a multiplicity of offenses and where there is variance or differences between the elements of an offense in one law and another law as in the case at bar there will be no double jeopardy because what the rule on double jeopardy prohibits refers to identity of elements in the two (2) offenses. Otherwise stated, prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense. Hence, the mere filing of the two (2) sets of information does not itself give rise to 7 double jeopardy (People v. Miraflores, 115 SCRA 570). The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for payment. The law has made the mere act of issuing a bad check amalum 9 prohibitum, an act proscribed by the legislature for being deemed pernicious and inimical to public welfare. According to Chief Justice Pedro L. Yap in the landmark case of Lozano v. Martinez:
10

guarantee. This intent may be gathered from the statement of the sponsor of the bills . . . which was enacted later into BP 22, when it was introduced before the Batasang Pambansa that the bill was introduced to discourage the issuance of bouncig checks, to prevent checks from becoming "useless scrap of paper" and to restore respectability to checks, all without distinction as to the purpose of the issuance of the checks. . . . Consequently, what are important are the facts that the accused had deliberately issued the checks in question to cover accounts and that the checks were dishonored upon presentment regardless of whether or not the accused merely issued the checks as a guarantee. (Emphasis added) Even on the assumption, then, that the subject checks were given by the appellant as a mere guaranty and not as payment, this circumstance will not absolve Reyes from her violation of BP 22. The appellant has also been convicted under Art. 315 (2) (d) of the Revised Penal Code, as amended by R.A. No. 4885, which penalizes any person who shall defraud another "by postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check." To constitute estafa under this provision, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of the defraudation; as such, it should be either prior to or simultaneous with the act 12 of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of the check, whether postdated or 13 not. It must be shown that the person to whom the check was delivered would not have parted with his money or property were it not for the issuance of the check by the other party. Stated otherwise, the check should have been issued as an inducement for the surrender by the party deceived of his money or property and not in payment of a pre-existing obligation. It is recalled that Garcia was unwilling at first to deal with Reyes but was finally persuaded when she issued the two checks in payment for the first 100 sacks of rice. One of these checks was encashed before the second could mature and be subsequently dishonored. Believing the Reyes' credit was good, Garcia accepted two more checks from her in payment for another 100 sacks, and Reyes redeemed one of them before the other could mature and be subsequently dishonored. Garcia was still unaware of Reyes's deception when she entered into their last sale of 400 sacks, for which Reyes issued another two checks in payment, one of which was also to be dishonored later. In all this series of transactions, Garcia was induced to sell because of the checks issued by the appellant which the complainant believed to be funded. The deceit practiced by Reyes on Garcia is all too palpable. Reyes was able to maintain Garcia's confidence by making good three of the checks she had issued and thus giving Garcia the impression that the other checks, which she could not yet present for payment, would be honored. Reyes' timing was clever. She saw to it that one of her checks for the first delivery was valid (and was subsequently encashed) before she made her second purchase, for which she issued two more checks. She redeemed one of these checks before she bought the final 400 sacks, for which she issued another two checks. All this time, Garcia believed that the remaining postdated checks she had yet to encash were all good when they were in fact all worthless.

The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. The appellant argues that the questioned checks were not intended for deposit or encashment but merely to guarantee payment of her obligations to Garcia, who, she stresses, admitted that for every delivery of rice the corresponding checks were given in return. She contends that in credit transactions, a check may serve merely as a guaranty for the payment of the amount indicated therein, to be redeemed later by the drawer "on the maturity date of the check or on a much later date, depending on the availability of funds of the latter." It is now settled that BP 22 applies even in cases where the dishonored checks were issued merely in the form of a deposit or a guaranty and not as actual payment. The law does not make any distinction. Criminal liability attaches to the drawer of the check whether it was issued in payment of an obligation or merely to guarantee 11 the said obligation. As we held in Que v. People: . . . Inasmuch as the law does not make any distinction in this regard, no such distinction can be made by means of interpretation of application. Furthermore, the history of the enactment of subject statutes evinces the definitive legislative intent to make the prohibition all embracing, without making any exception from the operation thereof in favor of a

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The three postdated checks that were subsequently dishonored were issued at a time when the funds in her account were insufficient and even nil. Two of these checks were dated April 10, 1986, and the third April 15, 1986. The records of the drawee bank showed that Reyes had a zero balance at the time the checks were issued 14 and also when they were presented for payment. The dishonored checks she had issued to Garcia had a total value of P96,290.00, and this represented the damage sustained by Garcia because of the appellant's deceit. Reyes had issued these check upon her fraudulent assurance to Garcia that they were fully funded. Her situation worsened when she failed to make good the checks within three days from receipt of notice of their dishonor and the demand from the complainant for their value. Her failure to take advantage of this grace period offered by the law raised the prima facie inference of deceit consisting of "false pretense or a fraudulent 15 act." The appellant's final contention is the, prior to the delivery of the rice, she had agreed that only 50% of the purchase price would be paid upon delivery and that the remaining 50% would be covered by a postdated check. Hence, as the subject checks covered the balance of the purchase price of the 600 sacks of rice, they were issued in payment of a pre-existing obligation and so did not violate Article 315 of the Revised Penal Code or BP 22. The facts established by the prosecution belie this assertion. The evidence to the contrary is overwhelming. There is no doubt that the subject checks were issued by Reyes (and accepted by Garcia) in exchange for the three deliveries of rice as each delivery was made. We are satisfied that the postdated checks were issued by the appellant not as payment for a pre-existing obligation but as the consideration for each shipment of rice she received from the complainant. The argument that the postdated checks were promissory notes and not for negotiation is so unsubstantial as to deserve no serious attention. The Court notes the following observations of the trial court on the personality of the appellant: Accused, past 50, is a physically handicapped lady whose height is barely two (2) feet. In fact, whenever she came to court, she was always assisted by one or two companions. But she is well educated and speaks English fluently. The Court discerns that it is this unique combination of bizarre physical make-up and seeming trustworthiness which led others, like herein complainant, to repose their confidence in her. Her counsel manifested that she is also facing similar charges in other branches of this Court. It is indeed pathetic that the appellant should suffer the physical handicap above described, but what is especially tragic is she has chosen to use this handicap for the deception of Garcia, who trusted her partly out of sympathy for her abnormal appearance. By her deceitfulness, Reyes has forfeited all feelings of charity or kindness toward her and earned instead the punishment of the laws she has scorned. WHEREFORE, the challenged decision is AFFIRMED and the appeal is DENIED, with costs against the appellant. It is so ordered. Davide, Jr. and Quiason, JJ., concur.

People vs. Reyes

9MAY GR 101127-31, 18 November 1993 FACTS Lorie Garcia delivered rice to Cresencia Reyes, as accommodation to her friend Manny Cabrera who had no more stock to sell. Reyes issued 6 checks for 6 orders delivered in different dates. Only 3 of the 6 checks were made good, the other 3 were returned by the bank due to insufficient funds. Ga rcia notified Reyes of the dishonor and the latter promised to pay her their total value. Despite demands, Reyes failed to make good the checks or replace them with cash. 3 criminal cases for violation of BP 22 and 2 criminal cases for estafa were filed against Reyes. ISSUE Whether a single act of issuing a check may entail criminal liability of both violation of BP 22 and Article 315 of the Revised Penal Code (Estafa). HELD A single criminal act may give rise to a multiplicity of offenses and where there is a variance or differences between the elements of an offense in one law and another law. The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentment for payment; and act deemed pernicious and inimical to public welfare. BP 22 applies even where the dishonored checks were issued merely in the form of a deposit or a guaranty and not as actual payment, as the law does not make any distinction. On the other hand, the checks were not payment for a pre-existing obligation nut as consideration for each shipment of rice. The checks were issued as an inducement for the surrender by the party deceived of her property. Reyes made good 3 of the checks, giving assurance to Garcia that the remaining checks were fully funded. Her failure to make good the checks raised the prima facie inference of deceit.

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EN BANC

[A.M. No. MTJ-97-1139. October 16, 1997]

Dumlaos complaint (I.S. No. V-94-30) was dismissed on August 15, 1994 for insufficiency of evidence. After a reinvestigation of the two cases, however, Assistant City Prosecutor Paz de G. Peralta directed the filing of an information for attempted murder against complainant Roberto Espiritu, Arnel Guerra, Andres Espiritu, Marlino Bautista, Januario Peregrino, Abrillo Peregrino, Eulogio Pabunan, Dario Pabunan, and Landio Pabunan even as [8] she affirmed the dismissal of Criminal Case No. 2346 against Dumlao. Espiritu sought a review in the Department of Justice, but his petition was denied for having been filed late and for his failure to attach the affidavits submitted during the preliminary investigation.
[9]

[7]

ROBERTO ESPIRITU, complainant, vs. JUDGE EDUARDO JOVELLANOS, 8 Municipal Circuit Trial Court, AlcalaBautista, Pangasinan,respondent. DECISION MENDOZA, J.: Respondent is judge of the 8th Municipal Circuit Trial Court of Alcala-Bautista, Pangasinan. He is charged with ignorance of the law, grave abuse of authority, and gross partiality in connection with the preliminary investigation of Criminal Case No. 2346 for frustrated murder which the herein complainant, Roberto Espiritu, had filed against Weny Dumlao. The facts are as follows: In his affidavit in Criminal Case No. 2346, Roberto Espiritu, as complainant, alleged that at around 7:30 in the evening of July 16, 1994, while he was with a group which included Eulogio Pabunan, Arnel Guerra, Januario Peregrino, and Marcelino Bautista, Weny Dumlao approached him and fired at him three times, as a result of which complainant was wounded; that complainant was able to run away; and that Dumlao wanted to kill complainant because the latter had filed a case against Dumlaos brother, Victor, for the murder of [2] [3] complainants son Rolly. On the basis of this affidavit and those of Arnel Guerra and Eulogio Pabunan, SPO II [4] Eduardo R. Yadao filed a criminal complaint for frustrated murder on August 10, 1994 in respondents court. After conducting a preliminary examination, respondent judge ordered on August 18, 1994 the arrest of Dumlao [5] and fixed the amount of bail for his provisional liberty at P20,000.00. However, in an order dated September 7, 1994, he reduced the amount of the bail to P10,000.00, stating that Dumlaos father had asked for the reduction. On September 12, 1994, he ordered any peace officer under whose custody *Dumlao+ may be [6] found to release the latter in view of the fact that Dumlao had posted bail for P10,000.00. Then on October 12, 1994 he dismissed the complaint, citing, among other reasons, the fact that Dumlao had filed a case against Roberto Espiritu and others as a result of the same incident complained of in Criminal Case No. 2346. It appears that Dumlao had filed on July 27, 1994 a countercharge against complainant and others with the Office of the Provincial Prosecutor in Villasis, Pangasinan for attempted murder and illegal possession of firearm. The case was docketed as I.S. No. V-94-30. Dumlao claimed that as he approached Espiritus group, Arnel Guerra shot him, although Guerra missed him; that as he ran towards his house, other members of the group also fired at him; and that Espiritus group challenged him and his father to come out and fight.
[1]

th

Espiritu filed the complaint in this case, alleging irregularities committed by respondent judge in the conduct of [10] the preliminary investigation of his complaint against Dumlao. Respondent judge filed a comment, denying the charges. Complainant, on the other hand, filed a reply. Among other things, complainant claimed that this was not the first time that respondent judge had shown ignorance of the rules on criminal procedure, because on September 29, 1994, in People of the Philippines v. Cesario Sanchez, Criminal Case No. V-0092, respondent judge had been reprimanded by the Regional Trial Court of Villasis, Pangasinan (Branch 50) for approving the bail bond of the accused when the latter had not yet been arrested. On June 26, 1995, the Court referred the case to Judge Pedro C. Cacho of the Regional Trial Court, Branch 52, at Tayug, Pangasinan for investigation, report, and recommendation. On October 6, 1995, Judge Cacho submitted his report, recommending that respondent judge be fined in the amount of P3,000.00 and reprimanded for neglect of duty, partiality, and/or inefficiency tantamount to grave ignorance of the law. Except as to the amount of the fine recommended, the Court concurs in the report of the investigating judge. The charges against respondent judge relate to basically two acts committed by him: (1) granting bail to Weny Dumlao in the reduced amount of P10,000.00 and (2) dismissing the criminal complaint against Dumlao. I. With respect to the granting of bail to Weny Dumlao and the reduction of its amount to P10,000.00, complainant alleges: 2. The municipal courts are now courts of records. Per order dated September 7, 1994. . . . the Honorable Judge reduced the amount of bail His Honor set in a previous order (Page 12, Ibid.), from P20,000.00 to P10,000.00 acting supposedly upon the request of the father of the accused. However, there is no such request for reduction of bail on file with the records of the case; 3. At the time the Honorable Judge acted on the request for reduction of bail, the accused was not under detention as he was not arrested nor had he voluntarily surrendered as borne by the records. Accordingly, the Court has not yet acquired jurisdiction over the person of the accused, so the Honorable Judge cannot act on such request for reduction of bail even if interceded by the father of the accused;
[11]

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4. The amount at which the bail was reduced: P10,000.00 is not commensurate with the gravity of the crime charged, an evident manifestation of the Judges injudiciousness in the exercise of his authority and discretion. The bail bond guide of 1981 provides for the amount P12,500.00; Simply stated, the complaint is that respondent judge is guilty of ignorance of the law, bias, and partiality for Dumlao as shown by the following: (a) respondent judge granted bail and later reduced its amount when the fact was that, at that time, Dumlao was not in the custody of the court; (b) there was no written motion presented for the reduction of bail, which is a necessity since MCTCs are courts of record; and (c) pursuant to the 1981 Bail Bond Guide the bail for frustrated murder should be P12,500.00. A. It is indeed true that, in general, bail presupposes that the applicant is under arrest, detained, or [12] otherwise deprived of his liberty. In this case, it appears that on July 16, 1994, shortly after the incident, Weny Dumlao surrendered to the police, but the next day (July 17, 1994) he was released to the custody of Assistant [13] Provincial Prosecutor Emiliano Matro. Prosecutor Matro testified that upon DECS Supervisor Nuelito Dumlaos request, he agreed to take custody [14] of Dumlao for which reason Weny Dumlao was released by the police. According to Matro, this was not the [15] first time that he took custody of one who was under investigation. Apparently, therefore, when Dumlao applied for bail on September 7, 1994 to respondent judge, Dumlao was not in custody. Nor was his release to the custody of Assistant City Prosecutor Matro in accordance with law. Under Rule 114, 15 of the Rules of Court, the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: (a) when the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036; (b) where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance; (c) where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one; and (d) in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and [16] under the circumstances envisaged in P.D. No. 603, as amended (Art. 191). But although then not in legal custody, Dumlao subsequently submitted himself to the jurisdiction of the court when on September 7, 1994 he personally asked respondent judge to admit him to bail and reduce its [17] amount. In Paderanga v. Court of Appeals, Miguel Paderanga was one of the accused in a case for multiple murder. Before the arrest warrant could be served on him, he filed through counsel a motion for admission to bail which the trial court set for hearing on November 5, 1992 with notice to both public and private prosecutors. As Paderanga was then confined at a hospital, his counsel manifested that they were submitting custody over Paderangas person to the chapter president of the Integrated Bar of the Philippines and asked that, for purposes of the hearing on his bail application, he be considered as being in the custody of the law. On November 5, 1992, the trial court admitted Paderanga to bail in the amount of P200,000.00. The next day, Paderanga in spite of his weak condition, managed to personally appear before the clerk of court of the trial court and posted bail. He was arraigned and thereafter he attended the hearings. We held that the accused was in the constructive custody of the law when he moved for admission to bail through his lawyers (1) by filing the application for bail with the trial court, (2) by furnishing true information of his actual whereabouts, and (3) by unequivocably recognizing the jurisdiction of said court. Respondent judge thus correctly granted bail to Dumlao.

B. Respondent judge erred, however, in fixing the amount of bail at P20,000.00 and reducing it [18] to P10,000.00 and in doing so without a hearing. Under the 1981 Bail Bond Guide (Ministry Circular No. 36, September 1, 1981), the amount of bail in cases [19] of frustrated murder is P12,500.00. In its Circular No. 10 dated July 3, 1987, the Department of Justice noted that the amounts fixed in the Bail Bond Guide had become unrealistic and impractical for the purpose of assuring the presence and/or appearance of persons facing charges in court and acc ordingly directed that the amount of bail be computed at the rate of P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense. Judged by this standard, the P10,000.00 bail fixed in this case was inadequate. The penalty for frustrated murder prior to R.A. No. 7659 is prision mayor in its maximum period (10 years and 1 day to 12 years) to reclusion temporal in its medium period (14 years, 8 months, and 1 day to 17 years and 4 months). So that, applying Art. 50, in relation to Art. 248 of the Revised Penal Code, the medium penalty would be reclusion temporal in its minimum period (12 years and 1 day to 14 years and 8 months). Under Circular No. 10, the amount of the bail should have been fixed between P120,000.00 and P140,000.00. Either respondent judge was grossly ignorant of the law or he deliberately disregarded it to favor the accused. Considering that part of his duties as a judge is conducting preliminary investigations, it is his duty to keep abreast of the laws, rulings, and jurisprudence regarding this matter. It is apparent that he has not. In failing to do so he failed to live up to the injunction of the Code of Judicial Conduct to maintain professional [20] competence. The maxim ignorance of the law excuses no one has special application to judges. Further demonstrating either deliberate disregard of the law or gross ignorance of the same, respondent judge granted bail to Weny Dumlao without notice to the prosecution, in violation of Rule 114, 18. In Chin v. [21] Gustilo, this Court ruled that notice of application for bail to the prosecution is required even though no charge has yet been filed in court and even though under the circumstances bail is a matter of right. The failure to observe the above requirement constitutes ignorance or incompetence which cannot be excused by any [22] protestation of good faith. In this case, the failure to give notice to the prosecution may be due to the fact that there was no written motion filed but only, as respondent judge himself admitted, an oral request by Dumlao and his father that the amount of the bail be reduced. What respondent judge should have done was to have Dumlao put his request in writing and then schedule the incident for hearing with notice to the prosecution. Instead, he readily granted the request, which indicates rather clearly respondent judges partiality. This partiality was nowhere more evident than in the private conference which he had with the Dumlaos in his chambers without the presence of the opposing party, the complainant in this case. Time and again we have admonished judges not only to be [23] impartial but also to appear to be so. For appearance is an essential manifestation of reality. Departing from this established norm, respondent judge signed his September 7, 1994 order reducing the amount of bail to P10,000.00 and then told Dumlao to inform the police about it so that he would be released. II. With respect to the charge that respondent judge, with grave abuse of authority, dismissed the case filed by complainant against Weny Dumlao, it is alleged that: 1. The Honorable Judge of the MCTC subpoenaed Dr. Marcelo S. Patawaran, Jr. (Page 15, Records of the Case-Annex A) and conducted examination upon the doctor without notice, nay presence, of the parties of the case. . . . It is significant to note that the searching questions propounded upon the doctor tended to diminish the significance and importance of the medical certificate (Page 5, Ibid.) which may have been achieved, but the whole of the proceedings unmasked the partiality of the Court towards the accused. Moreover, it is unbelievable that the Honorable Judge is not aware of the

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plenitude in our jurisprudence of proceedings undertaken by courts and tribunals without notice and presence of the parties that were declared null and void by the Supreme Court; .... 5. On September 12, 1994, the Honorable Judge issued a subpoena upon the accused, requiring the accused to submit his counter-affidavits of his witnesses and his other pieces of evidence, if any. Under the rule, and as contained in the subpoena, the accused was given ten (10) days to do so, and the period expired on September 22, 1994 as he received copies of the subpoena and the complaint with supporting affidavits on September 12, 1994 as shown by the records, Annex A. Without prior motion for extension of period, the Honorable Judge allowed the filing by the accused of his counter-affidavit only on October 11, 1994, some 29 days late [actually only 19 days]. Moreover, the Court did not require the accused to furnish copy of his counter-affidavit to the complainant prior to submitting the same in Court, in violation of Section 2(c), Rule 112 of the Rules of Court; 6. In the resolution recommending the dismissal of this case . . . , the Honorable Judge cited as one reason the existence of a counter-charge pending preliminary investigation before the Office of the Provincial Prosecutor, Villasis, Pangasinan concerning the same incident which is the subject matter of this case, referring to I.S. No. V-94-30, filed by accused as complainant therein. That case (I.S. No. V94-30) was dismissed per Resolution dated August 15, 1994, copy of which is hereto attached and marked as Annex B. After the dismissal of said case, the accused, as complainant, endeavored to revive the case, but which undertaking took him a long time, hence, t he delay of accuseds counteraffidavit in Criminal Case No. 2346. . . . The fact alone that accused was allowed to delay the filing of his counter-affidavit to enable him to revive his counter-charge is an evident gross partiality of the Honorable Judge; and 7. The Honorable Judge, without any basis, directly or impliedly, made a finding that the wound sustained by herein complainant was self-inflicted, totally disregarding the evidence on record, as declared positively by eye witnesses. Such actuation bespeaks of the grave abuse of discretion by the Honorable Judge. A. With regard to the examination of Dr. Melecio S. Patawaran, Jr. on September 1, 1994 respondent judge admits that he did not give notice to the parties of the same but claims that it was because he was [24] only at that time in the first stage of preliminary investigation. This is inconsistent with his later testimony in which he admitted that when he ordered a warrant of arrest to be issued against Dumlao on [25] August 18, 1994, the first stage of preliminary examination had already been terminated. Respondent contends that Rule 112, 3(e) did not apply to the examination of Dr. Patawaran on [26] September 1, 1994 because at that time Dumlao had not yet submitted his counteraffidavit. This provision states: If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

If, as respondent judge claims, the holding of a hearing for the purpose of asking clarificatory questions presupposes the filing by the parties of their affidavits but at the time he examined Dr. Patawaran he had not yet received the counteraffidavit of Weny Dumlao, then what he should have done was to wait until the counteraffidavit was filed and in the meantime not examine Dr. Patawaran. What is particularly objectionable was the examination of Dr. Patawaran as a witness without the presence of the parties. B. Nor is there any excuse for respondents consideration of Dumlaos counteraffidavit despite the [27] fact that it had been filed several days late. Dumlao received the order requiring him to file his counteraffidavit and that of his witnesses on September 12, 1994. As under Rule 112, 3(b) Dumlao had only 10 days from receipt of the subpoena within which to comply, his counteraffidavit should have been filed not later than September 22, 1994. However, it took him 19 more days after the reglementary period had expired before he finally filed his counteraffidavit on October 11, 1994. Dumlao did not ask for an extension, yet respondent judge allowed the counteraffidavit. Respondent claims that
[28]

The acceptance of the Counter-Affidavit is not my duty. It is my Clerk of Court who received the Counter-Affidavit and when I look into the records, the Counter-Affidavit was already there in the record and I was also preparing a Resolution to that case, so I have to take cognizance of the CounterAffidavit. After all, there was no one month yet that lapsed so I have to take cognizance of the Counter Affidavit. And immediately after that, I issued a Resolution. The contention has no merit. The duty of the clerk of court was to receive the counteraffidavit. It was respondent judges responsibility to see to it that what was received in his court had been filed on time. Nor is it true that when respondent judge saw the counteraffidavit, it had already been attached to the records. Clerk of Court Adoracion Marcos testified that upon receipt of the counteraffidavit, she showed it to respondent [30] judge. Respondent judge therefore knew when the counteraffidavit was filed. At the very least, he should have checked whether it was filed on time. That respondent judge allowed the late filing of the counteraffidavit can only be attributed to his desire to enable Dumlao to revive his case against complainant in the Prosecutors Office because it was the linchpin for his defense in Criminal Case No. 2346. C. What has been just said applies as well to respondent judges claim that responsibility for furnishing complainant a copy of the counteraffidavit was not the courts responsibility but Dumlaos. The service of the [31] counteraffidavit on complainant should indeed be made by Dumlao and not by the court, but respondent judge should have seen to it that this duty had been complied with upon the filing of the counteraffidavit. The serve and file rule is so basic for respondent judge not to know it. It was not fair for respondent judge to consider a pleading which the other party knew nothing about because it had not been served on him. D. In dismissing Criminal Case No. 2346, respondent judge said:
[32] [29]

For the weighing and evaluation of evidence of both parties, the Court took the pain of issuing a subpoena to Dr. Marcelo [actually Melecio] S. Patawaran, Jr., a resident physician of Don Amadeo Perez, Sr. Memorial Hospital at Urdaneta, Pangasinan, who testified that the bullet did not have any exit and there was no bullet left in the body and it becomes only an injury. That the patient was advised to be referred to the Pangasinan Provincial Hospital for x-ray purposes, instead he went to the Sacred Heart Hospital at Urdaneta, Pangasinan and went home after x-ray. That no x-ray result was submitted to Don Amadeo J. Perez, Sr. Hospital or to the Court to prove that it was really a bullet wound. That he did not notice any powder burns on the injury.

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. . . [I]n the opinion of the Court, the injury is self inflicted, this case should be dismissed. . . . Thus, based on alleged testimony of Dr. Patawaran, respondent judge cast doubt on complainants claim that his wound was a gunshot wound and held that the wound had been inflicted by complainant on himself. This is contrary to Dr. Patawarans testimony in the preliminary investigation conducted by respond ent [33] judge. Dr. Patawaran said in his testimony: Q: Doctor, here in this medical certificate in the findings or diagnosis it says GSW or gunshot wound, was it really in your opinion a gunshot wound? A: Yes, Judge. Q: Why do you say it is a gunshot wound? A: Because when I saw the wound it manifested the characteristic of a gunshot wound like the inversion of the skin edges. Q: You said inversion of the skin edges Doctor, did you find any bullet in the injury? A: That is why I referred the patient to the Provincial Hospital for x-ray because when you see only the entrance and no exit, its a must so as to locate the bullet as it does not have any exit. Q: Do you know if the bullet is inside the body of the person? A: That will be determined by the x-ray, sir. .... Q: In this medical certificate Doctor below the findings and diagnosis are the letters GSW is in writing and not typewritten as the injuries and entries indicated, will you please explain? A: I initialed it to make it authenticated, a typographical error, sir. Q: From the injury Doctor you can not determine also how far was the assailant? A: Probably around more or less 3 meters, sir. Q: Did you talk to the patient Roberto Espiritu when he was taken to your hospital Doctor? A: Yes, sir. Q: Did Roberto Espiritu ever mention to you the name of the assailant and that he recognized him? A: I just asked what happened and he said pinaltogdac I was shot, and I did not ask the name of the assailant any more. It would seem respondent judge simply relied on the counteraffidavit of Dumlao for his resolution, [34] particularly the following portion of Dumlaos counteraffidavit: The medical certificate of private complainant Roberto Espiritu doesnt categorically state that the wound is a gun shot wound and if the letters GSW in handwritten form in a ballpen appear therein is an information coming from and supplied by said complainant, other entries are typewritten, it is not a

gun shot wound as ascertained and examined by the attending doctor; the complainant was never confined in the hospital; there is no exit of the bullet but no finding whether said bullet is embedded and found inside the body of the alleged victim-complainant; if the private-complainant ever sustained any wound, it is one that is self-inflicted in a vain effort to substantiate a false charge of a serious offense of frustrated murder making it appear as a consequence of a gunshot; the medical certificate doesnt state the healing period of the self-inflicted wound; medical certificate is attached and marked as Annex E to form part hereof. The foregoing acts of respondent judge clearly demonstrate partiality. WHEREFORE, the Court finds Judge Eduardo U. Jovellanos GUILTY of gross misconduct and imposes on him a FINE of P20,000.00, with a WARNING that repetition of the same or similar offenses will be dealt with more severely. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

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