equal protection of the laws. The statute stifles and curtails the right to free political discussion.

FIRST DIVISION [G.R. No. L-32485. October 22, 1970.] IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A. No. 6132. DECISION KAY VILLEGAS KAMI, INC., petitioner MAKASIAR, J p: This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized and existing non-stock and non-profit corporation created under the laws of the land, and praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties thereunder. In paragraph 7 of its petition, petitioner avers that it has printed materials designed to propagate its ideology and program of government, which materials include Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue its purposes by supporting delegates to the Constitutional Convention who will propagate its ideology. Petitioner, in paragraph 7 of its petition, actually impugns, because it quoted, only the first paragraph of Sec. 8(a) on the ground that it violates the due process clause, right of association, and freedom of expression and that it is an ex post facto law. The first three grounds were overruled by this Court when it held that the questioned provision is a valid limitation on the due process, freedom of expression, freedom of association, freedom of assembly and equal protection clauses; for the same is designed to prevent the clear and present danger of the twin substantive evils, namely, the prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal change for all candidates, and the independence of the delegates who must be "beholden to no one but to God, country and conscience," are interests that should be accorded primacy. 1 The petitioner should therefore be accordingly guided by the pronouncements in the cases of Imbong and Gonzales. 2 The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise untenable. 2.ID.; ID.; STATUTES; WHEN PURPOSES THEREOF ARE DECLARED MALA PROHIBITA.. Laws that would regulate the purposes for which associations and societies may be formed or would declare their purposes mala prohibita must pass the usual constitutional test of reasonableness, and furthermore must not abridge freedom of speech and press.

SYLLABUS 1.POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; CONSTITUTIONAL CONVENTION LAW, CONSTITUTIONAL, REASONS. The questioned provision, Section 8(a) of the Constitutional Convention Law, is a valid limitation on the due process, freedom of expression, freedom of association, freedom of assembly and equal protection clauses of the bill of rights of the Constitution for the same is designed to prevent the clear and present danger of the twin substantive evils, namely, the prostitution of electoral process and denial of the equal protection of the laws. Moreover, under the balancing-of-interests test, the cleansing of the electoral process, the guarantee of equal chances for all candidates and the independence of the delegates who must be "beholden to no one but to God, country and conscience," are interests that should be accorded primacy. 2.ID.; ID.; ID;. SEC. 8(a) OF REPUBLIC ACT 6132 NOT EX POST FACTO LAW. Section 8(a) of Republic Act 6132 is not an ex post facto law for the constitutional inhibition refers only to criminal laws which arc given retroactive effect. While it is true that Sec. 18 penalties a violation of any provision of R.A. 6132 including Sec. 8(a) thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Sec. 8(a) and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, Sec. 23 directs that the entire law shall be effective upon its approval on August 24, 1970. TEEHANKEE, J, dissenting. 1.POLITICAL LAW; CONSTITUTIONAL LAW; PAR. I OF SEC. 8(a) OF REPUBLIC ACT 6132, UNCONSTITUTIONAL. The challenged provision, together with the Act's other restrictions and strictures enumerated therein, oppressively and unreasonable straitjacket the candidates as well as the electorate and gravely violate the constitutional guaranties of freedom of expression, freedom of the press and freedom of association, and deny due process and the

An ex post facto law is one which: (1)makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2)aggravates a crime, or makes it greater than it was, when committed; (3)changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4)alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5)assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6)deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. 3 From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition refers only to criminal laws which are given retroactive effect.4 While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8 (a) thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, Sec. 23 directs that the entire law shall be effective upon its approval. It was approved on August 24, 1970. WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional. Without costs. Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur. Zaldivar, J., reserves his vote.

Fernando, J., concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432 and Gonzales v. Comelec, L-32443. Teehankee, J., dissents in a separate opinion. Barredo, J., reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case, dissents, even as agrees that Republic Act 6132 is notex post facto. Villamor, J., concurs in the sense that the law is declared not ex post facto law and dissents as to the rest. Concepcion, C.J., is on official leave.

EN BANC [G.R. Nos. 61776 to 61861. March 23, 1984.] REYNALDO R. BAYOT, petitioner, vs. SANDIGANBAYAN (SECOND DIVISION) and PEOPLE OF THE PHILIPPINES, respondents.

Petitioner Reynaldo R. Bayot is one of the several persons accused in more than one hundred (100) counts of Estafa thru Falsification of Public Documents before theSandiganbayan. The said charges stemmed from his alleged involvement, as a government auditor of the Commission on Audit assigned to the Ministry of Education and Culture, together with some officers/employees of the said Ministry, the Bureau of Treasury and the Teacher's Camp in Baguio City, in the preparation and encashment of fictitious TCAA checks for non-existent obligations of the Teacher's Camp resulting in damage to the government of several million pesos. The first thirty-two (32) cases were filed on July 25, 1978. In the meantime, petitioner ran for the post of municipal mayor of Amadeo, Cavite in the local elections held in January 1980. He was elected. On May 30, 1980, the Sandiganbayan promulgated a decision convicting herein petitioner and some of his co-accused in all but one of the thirty-two (32) cases filed against them. Whereupon, appeals were taken to this Court and the cases are now pending review in G.R. Nos. L-54645-76. However, on March 16, 1982, Batas Pambansa Blg. 195 was passed amending, among others, Section 13 of Republic Act No. 3019. The said section, as amended, reads "Sec. 13.Suspension of and Loss of Benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment he shall lose all retirement or gratuity benefits under any law, but if acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings had been filed against him." Thereafter, in other cases pending before the respondent court in which herein petitioner is one of the accused, the prosecution filed a motion to suspend all the accused-public officers pendente lite from their respective offices or any other public office which they may be occupying pending trial of their cases. prLL On July 22, 1982, respondent court issued an order directing the suspension of all the accused including herein petitioner "from their public positions or from any other public office that they may be holding . . ." (p. 26, Rollo). Herein petitioner filed a motion for reconsideration alleging that "to apply the provision of Batas Pambansa Blg. 195 to the herein accused would be violative of the constitutional

Renato J. Bihasa for petitioner. The Solicitor General for respondents.

SYLLABUS 1.CONSTITUTIONAL LAW; BILL OF RIGHTS; EX POST FACTO LAW; LAWS PROVIDING FOR SUSPENSION FROM OFFICE OF PUBLIC OFFICERS PENDING TRIAL, NOT IN VIOLATION OF CONSTITUTION. There is no merit in petitioner's contention that Section 13 of Republic Act 3019, as amended by Batas Pambansa Blg. 195, which includes the crime of Estafa thru Falsification of Public Document as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. 2.CRIMINAL LAW; CRIMES COMMITTED BY PUBLIC OFFICERS; SUSPENSION FROM OFFICE PENDING TRIAL; APPLICABILITY THEREOF TO ANY OFFICE WHICH THE OFFICER CHARGED MAY BE HOLDING CASE AT BAR. The claim of petitioner that he cannot be suspended because he is presently occupying a position different from that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under Republic Act 3019 or for any offense involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Thus, by the use of the word "office" the same applies to any office which the officer charged may be holding, and not only the particular office under which he was charged.

DECISION

RELOVA, J p:

guarantee of protection against an ex post facto law" (p. 28, Rollo). The motion was denied by respondent court in a resolution dated September 6, 1982. Hence, this petition for certiorari. It is the submission of petitioner that respondent court acted without jurisdiction or in excess of jurisdiction amounting to lack of jurisdiction or with grave abuse of discretion in suspending petitioner from office as Mayor of Amadeo, Cavite, pendente lite because 1.Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as amended by Batas Pambansa Blg. 195, is a penal statute in which case the provision of said Act must be strictly construed in favor of the accused and against the State; 2.A close perusal of Batas Pambansa Blg. 195, as well as the proceedings therein of the Batas Pambansa is absent of the legislative intent to have said Batas Pambansa Blg. 195 applied retroactively; 3.In the supposition that Batas Pambansa Blg. 195 is to be applied retroactively, its application would violate the Constitutional provision against enactment of ex post facto law; and, 4.Petitioner cannot be suspended to the position of which he was duly elected by the people of Amadeo, Cavite, based on an act which has nothing to do with his present position. We find no merit in petitioner's contention that Section 13 of Republic Act 3019, as amended by Batas Pambansa Blg. 195, which includes the crime of Estafa thru Falsification of Public Document as among the crimes subjecting the public officer charged therewith with suspension from office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. Paragraph 3 of Article 24 of the Revised Penal Code clearly states that suspension from the employment or public office during the trial or in order to institute proceedings shall not be considered as penalty. It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension. Those mentioned in paragraph Nos. 1, 3 and 4 of said Article 24 are merely preventive measures before final judgment. Not being a penal provision, therefore, the suspension from office, pending trial, of the public officer charged with crimes mentioned in the amendatory provision committed before its effectivity does not violate the constitutional provision on ex post facto law. Further, the claim of petitioner that he cannot be suspended because he is presently occupying a position different from that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under Republic Act 3019 or for any offense involving fraud upon the government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Thus, by the use of the word "office" the same applies to any office which the officer charged may be holding, and not only the particular office under which he was charged.

ACCORDINGLY, instant petition for certiorari is hereby DISMISSED for lack of merit. SO ORDERED.

FIRST DIVISION [G.R. No. 113213. August 15, 1994.] PAUL JOSEPH WRIGHT, petitioner, vs. HON. COURT OF APPEALS, HON. JUDGE JOSE DE LA RAMA, RTC, BRANCH 139, MAKATI, M.M. and HON. FRANK DRILON, SECRETARY OF JUSTICE, respondents.

was an offense in the Requesting State at the time of the acts or omissions constituting the offense; and (b) the acts or omissions alleged would, if they had taken place in the Territory of the Requested State at the time of the making of the request for extradition, have constituted an offense against the laws in force in that state. Thus, the offenses for which petitioner is sought by his government are clearly extraditable under Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed, and, irrespective of the time they were committed, they fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2, paragraph 4, quoted above. 3.ID.; ID.; ID.; DOCUMENTARY REQUIREMENTS; COMPLIED WITH IN CASE AT BAR. The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy thereof, a statement of each and every offense and a statement of the acts and omissions which were alleged against the person in respect of each offense are sufficient to show that a person is wanted for prosecution under the said article. All of these documentary requirements were duly submitted to the trial court in its proceedings a quo. For purposes of compliance with the provisions of the Treaty, the signature and official seal of the AttorneyGeneral of Australia were sufficient to authenticate all the documents annexed to the Statement of the Acts and Omissions, including the statement itself. In conformity with the provisions of Article 7 of the Treaty, the appropriate documents and annexes were signed by "an officer in or of the Requesting State," "sealed with. . . (a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the Government of the Requesting State," and "certified by a diplomatic or consular officer of the Requesting State accredited to the Requested State." The last requirement was accomplished by the certification made by the Philippine Consular Officer in Canberra, Australia. 4.ID.; ID.; ID.; PHRASE "WANTED FOR PROSECUTION"; CONSTRUED. The petitioner's contention that a person sought to be extradited should have a "criminal case pending before a competent court in the Requesting State which can legally pass judgment of acquittal or conviction" stretches the meaning of the phrase "wanted for prosecution" beyond that intended by the treaty provisions because the relevant provisions merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person sought to be extradited." Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or information under the Treaty is required only when appropriate, i.e., in cases where an individual charged before a competent court in the Requesting State thereafter absconds to the Requested State, a charge or a copy thereof is not required if the offender has in fact already absconded before a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase "wanted for prosecution" to persons charged with an information or a criminal complaint renders the Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 5.CONSTITUTIONAL LAW; BILL OF RIGHTS; EX POST FACTO LAWS; CONSTRUED; CONSTITUTIONAL PROHIBITION APPLICABLE ONLY TO CRIMINAL LEGISLATION. Early commentators understood ex post fact laws to include all laws of retrospective application, whether civil or criminal. However, Chief Justice Salmon P. Chase, citing Blackstone, The

SYLLABUS 1.POLITICAL LAW; EXTRADITION; EXPLAINED. A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory. The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice." As it is an act of "surrender" of an individual found in a sovereign State to another State which demands his surrender, an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State's demand, in accordance with the requested State's own interests. The principles of international law recognize no right of extradition apart from that arising from treaty. Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert them to the State where their offenses were committed, jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition. 2.ID.; ID.; TREATY OF EXTRADITION BETWEEN AUSTRALIA AND THE PHILIPPINES; EXTRADITABLE OFFENSES; CASE AT BAR. Conformably with Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which warrants for his arrest were issued in Australia were undeniably offenses in the Requesting State at the time they were alleged to have been committed. From its examination of the charges against the petitioner, the trial court correctly determined that the corresponding offenses under our penal laws are Articles 315(2) and 183 of the Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. . . . Article 2(4) of the Treaty unequivocally provides that: 4. Extradition may be granted pursuant to provisions of this Treaty irrespective of when the offense in relation to which extradition is requested was committed, provided that: (a) it

Federalist and other early U.S. state constitutions in Calder vs. Bull (3 Dall. 3 U.S. 386 [1798]) concluded that the concept was limited only to penal and criminal statutes, As conceived under our Constitution, ex post fact laws are 1) statutes that make an act punishable as a crime when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribe greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence so as to make it substantially easier to convict a defendant. "Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused." This being so, there is absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified."

committed, 5 jurisdiction over such fugitives and subsequent enforcement of penal laws can be effectively accomplished only by agreement between States through treaties of extradition.

Desiring to make more effective cooperation between Australia and the Government of the Philippines in the suppression of crime, 6 the two countries entered into aTreaty of Extradition on the 7th of March 1988. The said treaty was ratified in accordance with the provisions of Section 21, Article VII of the 1987 Constitution in a Resolution adopted by the Senate on September 10, 1990 and became effective thirty (30) days after both States notified each other in writing that the respective requirements for the entry into force of the Treaty have been complied with. 7 The Treaty adopts a "non-list, double criminality approach" which provides for broader coverage of extraditable offenses between the two countries and (which) embraces crimes punishable by imprisonment for at least one (1) year. Additionally, the Treaty allows extradition for crimes committed prior to the treaty's date of effectivity, provided that these crimes were in the statute books of the requesting State at the time of their commission. Under the Treaty, each contracting State agrees to extradite. . . "persons . . . wanted for prosecution of the imposition or enforcement of a sentence in the Requesting State for an extraditable offense." 8 A request for extradition requires, if the person is accused of an offense, the furnishing by the requesting State of either a warrant for the arrest or a copy of the warrant of arrest of the person, or, where appropriate, a copy of the relevant charge against the person sought to be extradited. 9 In defining the extraditable offenses, the Treaty includes all offenses "punishable under the Laws of both Contracting States by imprisonment for a period of at least one (1) year, or by a more severe penalty." 10 For the purpose of the definition, the Treaty states that: cdrep (a)an offense shall be an extraditable offense whether or not the laws of the Contracting States place the offense within the same category or denominate the offense by the same terminology; (b)the totality of the acts or omissions alleged against the person whose extradition is requested shall be taken into account in determining the constituent elements of the offense. 11 Petitioner, an Australian Citizen, was sought by Australian authorities for indictable crimes in his country. Extradition proceedings were filed before the Regional Trial Court of Makati, which rendered a decision ordering the deportation of petitioner. Said decision was sustained

DECISION

KAPUNAN, J p: A paramount principle of the law of extradition provides that a State may not surrender any individual for any offense not included in a treaty of extradition. This principle arises from the reality of extradition as a derogation of sovereignty. Extradition is an intrusion into the territorial integrity of the host State and a delimitation of the sovereign power of the State within its own territory. 1 The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice." 2 As it is an act of "surrender" of an individual found in a sovereign State to another State which demands his surrender 3 , an act of extradition, even with a treaty rendered executory upon ratification by appropriate authorities, does not impose an obligation to extradite on the requested State until the latter has made its own determination of the validity of the requesting State's demand, in accordance with the requested State's own interests. prLL The principles of international law recognize no right of extradition apart from that arising from treaty. 4 Pursuant to these principles, States enter into treaties of extradition principally for the purpose of bringing fugitives of justice within the ambit of their laws, under conventions recognizing the right of nations to mutually agree to surrender individuals within their jurisdiction and control, and for the purpose of enforcing their respective municipal laws. Since punishment of fugitive criminals is dependent mainly on the willingness of host State to apprehend them and revert the to the State where their offenses were

by the Court of Appeals; hence, petitioner came to this Court by way of review on certiorari, to set aside the order of deportation. Petitioner contends that the provision of the Treaty giving retroactive effect to the extradition treaty amounts to an ex post facto law which violates Section 21 of Article VII of the Constitution. He assails the trial court's decision ordering his extradition, arguing the evidence adduced in the court below failed to show that he is wanted for prosecution in his country. Capsulized, all the principal issues raised by the petitioner before this Court strike at the validity of the extradition proceedings instituted by the government against him. Cdpr The facts, as found by the Court of Appeals, 12 are undisputed: On March 17, 1993, Assistant Secretary Sime D. Hidalgo of the Department of Foreign Affairs indorsed to the Department of Justice Diplomatic Note No. 080/93 dated February 19, 1993 from the Government of Australia to the Department of Justice through Attorney General Michael Duffy. Said Diplomatic Note was a formal request for the extradition of Petitioner Paul Joseph Wright who is wanted for the following indictable crimes: 1.Wright/Orr Matter one count of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; and 2.Wright/Cracker Matter Thirteen (13) counts of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958; one count of attempting to Obtain Property by Deception contrary to Section 321(m) of Victorian Crimes Act of 1958; and one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958, which crimes were allegedly committed in the following manner: The one (1) count of Obtaining Property by Deception contrary to Section 81 (1) of the Victorian Crimes Act of 1958 constitutes in Mr. Wright'sand cooffender, Herbert Lance Orr's, dishonesty in obtaining $315,250 from Mulcahy, Mendelson and Round Solicitors (MM7R), secured by a mortgage on the property in Bangholme, Victoria owned by Ruven Nominees Pty. Ltd., a company controlled by a Rodney and a Mitchell, by falsely representing that all the relevant legal documents relating to the mortgage had been signed by Rodney and Janine Mitchell.

The thirteen (13) counts of Obtaining Property by Deception contrary to Section 81(1) of the Victorian Crimes Act of 1958 constitutes in Mr.Wright's and cooffender Mr. John Carson Cracker's receiving a total of approximately 11.2 in commission (including $367,044 in bonus commission) via Amazon Bond Pty. Ltd., depending on the volume of business written, by submitting two hundred fifteen (15) life insurance proposals, and paying premiums thereon (to the acceptance of the policies and payment of commissions) to the Australian Mutual Provident (AMP) Society through the Office of Melbourne Mutual Insurance, of which respondent is an insurance agent, out of which life proposals none are in existence and approximately 200 of which are alleged to have been false, in one or more of the following ways: (i)some policy-holders signed up only because they were told the policies were free (usually or 2 years) and no payments were required. (ii)some policy-holders were offered cash inducements ($50 of $100) to sign and had to supply a bank account no longer used (at which a direct debit request for payment of premiums would apply). These policy-holders were also told no payments by them were required. (iii)some policy-holders were introduced through the 'Daily Personnel Agency', and again were told the policies were free for 2 years as long as an unused bank account was applied. (iv)some policy-holders were found not to exist. The one count of Attempting to Obtain Property by Deception contrary to Section 321(m) of the Victorian Crimes Act of 1958 constitutes in Mr.Wright's and Mr. Craker's attempting to cause the payment of $2,870.68 commission to a bank account in the name of Amazon Bond Pty. Ltd. by submitting one proposal for Life Insurance to the AMP Society, the policyholder of which does not exist with the end in view of paying the premiums thereon to insure acceptance of the policy and commission payments.

The one count of Perjury contrary to Section 314 of Victorian Crimes Act of 1958 constitutes in Mr. Wright's and Mr. Craker's signing and swearing before a Solicitor holding a current practicing certificate pursuant to the Legal Profession Practice Act (1958), a Statutory Declaration attending to the validity of 29 of the most recent Life Insurance proposals of AMP Society and containing three (3) false statements. Pursuant to Section 5 of PD No. 1069, in relation to the Extradition Treaty concluded between the Republic of the Philippines and Australia on September 10, 1990, extradition proceedings were initiated on April 6, 1993 by the State Counsels of the Department of Justice before the respondent court. In its Order dated April 13, 1993, the respondent court directed the petitioner to appear before it on April 30, 1993 and to file his answer within ten days. In the same order, the respondent Judge ordered the NBI to serve summons and cause the arrest of the petitioner. The respondent court received return of the warrant of arrest and summons signed by NBI Senior Agent Manuel Almendras with the information that the petitioner was arrested on April 26, 1993 at Taguig, Metro Manila and was subsequently detained at the NBI detention cell where petitioner, to date, continue to be held. Thereafter, the petitioner filed his answer. In the course of the trial, the petitioner testified that he was jobless, married to a Filipina, Judith David, with whom he begot a child; that he has no case in Australia; that he is not a fugitive from justice and is not aware of the offenses charged against him; that he arrived in the Philippines on February 25, 1990 returned to Australia on March 1, 1990, then back to the Philippines on April 11, 1990, left the Philippines again on April 24, 1990 for Australia and returned to the Philippines on May 24, 1990, again left for Australia on May 29, 1990 passing by Singapore and then returned to the Philippines on June 25, 1990 and from that time on, has not left the Philippines; and that his tourist visa has been extended but he could not produce the same in court as it was misplaced, has neither produced any certification thereof, not any temporary working visa. The trial court, in its decision dated 14 June 1993, granted the petition for extradition requested by the Government of Australia, concluding that the documents submitted by the Australian Government meet the requirements of Article 7 of the Treaty of Extradition and

that the offenses for which the petitioner were sought in his country are extraditable offenses under Article 2 of the said Treaty. The trial court, moreover, held that under the provisions of the same Article, extradition could be granted irrespective of when the offense in relation to the extradition was committed, provided that the offense happened to be an offense in the requesting State at the time the acts or omissions constituting the same were committed. 13 Petitioner challenged the decision of the Regional Trial Court before the Court of Appeals assigning the following errors: LLpr I.THAT THE HONORABLE RESPONDENT JUDGE GRAVELY ERRED IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY DESPITE THE FACT THAT THE EVIDENCE ADDUCED BY THE RESPONDENT SHOW THAT THE ALLEGED OFFENSES FOR WHICH PETITIONER IS SOUGHT TO BE EXTRADITED TOOK PLACE IN 19881989 AT THE TIME THERE WAS NO EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA.

II.THE ACT OF THE HONORABLE RESPONDENT JUDGE IN GIVING RETROACTIVE FORCE AND EFFECT TO THE EXTRADITION TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND AUSTRALIA AMOUNTS TO AN 'EX POST FACTO LAW' AND VIOLATES SECTION 21, ARTICLE VII OF THE 1987 CONSTITUTION. III.THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER DESPITE THE FACT THAT THE EVIDENCE ADDUCED DO NOT SHOW THAT PETITIONER IS WANTED FOR PROSECUTION IN AUSTRALIA. IV.THAT THE HON. RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN MISINTERPRETING THE EXTENDED STAY OF PETITIONER AS EVIDENCE OF PETITIONER'S DESIGN TO HIDE AND EVADE PROSECUTION IN AUSTRALIA. V.THAT THE HON. RESPONDENT JUDGE GRAVELY ERRED IN ORDERING THE EXTRADITION OF PETITIONER WITHOUT SPECIFYING IN HIS ORDER OR DECISION THE SPECIFIC CHARGES FOR WHICH PETITIONER IS TO STAND TRIAL IN AUSTRALIA. The Court of Appeals affirmed the trial court's decision on September 14, 1993 and denied petitioner's Motion for Reconsideration on December 16, 1993. 14Reiterating substantially

the same assignments of error which he interposed in the Court of Appeals, petitioner challenges in this petition the validity of the extradition order issued by the trial court as affirmed by the Court of Appeals under the Treaty. Petitioner vigorously argues that the trial court order violates the Constitutional prohibition against ex post facto laws. He avers that for the extradition order to be valid, the Australian government should show that he "has a criminal case pending before a competent court" in that country "which can legally pass judgment or acquittal or conviction upon him." LLpr Clearly, a close reading of the provisions of the Treaty previously cited, which are relevant to our determination of the validity of the extradition order, reveals that the trial court committed no error in ordering the petitioner's extradition. Conformably with Article 2, Section 2 of the said Treaty, the crimes for which the petitioner was charged and for which warrants for his arrest were issued in Australia were undeniably offenses in the Requesting State at the time they were alleged to have been committed. From its examination of the charges against the petitioner, the trial court correctly determined that the corresponding offenses under our penal laws areArticles 315(2) and 183 of the Revised Penal Code on swindling/estafa and false testimony/perjury, respectively. 15 The provisions of Article 6 of the said Treaty pertaining to the documents required for extradition are sufficiently clear and require no interpretation. The warrant for the arrest of an individual or a copy thereof, a statement of each and every offense and a statement of the acts and omissions which were alleged against the person in respect of each offense are sufficient to show that a person is wanted for prosecution under the said article. All of these documentary requirements were duly submitted to the trial court in its proceedings a quo. For purposes of compliance with the provisions of the Treaty, the signature and official seal of the Attorney-General of Australia were sufficient to authenticate all the documents annexed to the Statement of the Acts and Omissions, including the statement itself. 16 In conformity with the provisions of Article 7 of the Treaty, the appropriate documents and annexes were signed by "an officer in or of the Requesting State" 17 , "sealed with . . . (a) public seal of the Requesting State or of a Minister of State, or of a Department or officer of the Government of the Requesting State," 18 and "certified by a diplomatic or consular officer of the Requesting State accredited to the Requested State." 19 The last requirement was accomplished by the certification made by the Philippine Consular Officer in Canberra, Australia. The petitioner's contention that a person sought to be extradited should have a "criminal case pending before a competent court in the Requesting State which can legally pass judgment of acquittal or conviction" 20 stretches the meaning of the phrase "wanted for prosecution" beyond that intended by the treaty provisions because the relevant provisions merely require "a warrant for the arrest or a copy of the warrant for the arrest of the person sought to be extradited." 21Furthermore, the 'Charge and Warrant of Arrest Sheets' attest to the fact that petitioner is not only wanted for prosecution but has, in fact, absconded to evade arrest and criminal prosecution. Since a charge or information under the Treaty is required only when appropriate, i.e., in cases where an individual charged before a competent court in the Requesting State thereafter absconds to the Requested State, a charge or a copy thereof is not required if the offender has in fact already absconded before a criminal complaint could be filed. As the Court of Appeals correctly noted, limiting the phrase "wanted for prosecution"

to persons charged with an information or a criminal complaint renders the Treaty ineffective over individuals who abscond for the purpose of evading arrest and prosecution. 22 This brings us to another point raised by the petitioner both in the trial court and in the Court of Appeals. May the extradition of the petitioner who is wanted for prosecution by the government of Australia be granted in spite of the fact that the offenses for which the petitioner is sought in his country were allegedly committed prior to the date of effectivity of the Treaty. LexLib Petitioner takes the position that under Article 18 of the Treaty its enforcement cannot be given retroactive effect. Article 18 states: ENTRY INTO FORCE AND TERMINATION This Treaty shall enter into force thirty (30) days after the date on which the Contracting States have notified each other in writing that their respective requirements for the entry into force of this Treaty have been complied with. Either contracting State may terminate this Treaty by notice in writing at any time and it shall cease to be in force on the one hundred and eightieth day after the day on which notice is given. We fail to see how the petitioner can infer a prohibition against retroactive enforcement from this provision. The first paragraph of Article 18 refers to the Treaty's date of effectivity; the second paragraph pertains to its termination. Absolutely nothing in the said provision relates to, much less, prohibits retroactive enforcement of the Treaty. On the other hand, Article 2(4) of the Treaty unequivocally provides that: 4.Extradition may be granted pursuant to provisions of this Treaty irrespective of when the offense in relation to which extradition is requested was committed, provided that: (a)it was an offense in the Requesting State at the time of the acts or omissions constituting the offense; and (b)the acts or omissions alleged would, if they had taken place in the Territory of the Requested State at the time of the making of the request for extradition, have constituted an offense against the laws in force in that state.

Thus, the offenses for which petitioner is sought by his government are clearly extraditable under Article 2 of the Treaty. They were offenses in the Requesting State at the time they were committed, and, irrespective of the time they were committed, they fall under the panoply of the Extradition Treaty's provisions, specifically, Article 2 paragraph 4, quoted above. LexLib Does the Treaty's retroactive application violate the Constitutional prohibition against ex post facto laws? Early commentators understood ex post factolaws to include all laws of retrospective application, whether civil or criminal. 23 However, Chief Justice Salmon P. Chase, citing Blackstone, The Federalist and other early U.S. state constitutions in Calder vs. Bull 24 concluded that the concept was limited only to penal and criminal statutes. As conceived under our Constitution, ex post facto laws are 1) statutes that make an act punishable as a crime when such act was not an offense when committed; 2) laws which, while not creating new offenses, aggravate the seriousness of a crime; 3) statutes which prescribe greater punishment for a crime already committed; or, 4) laws which alter the rules of evidence so as to make it substantially easier to convict a defendant. 25 "Applying the constitutional principle, the (Court) has held that the prohibition applies only to criminal legislation which affects the substantial rights of the accused." 26 This being so, there is absolutely no merit in petitioner's contention that the ruling of the lower court sustaining the Treaty's retroactive application with respect to offenses committed prior to the Treaty's coming into force and effect, violates the Constitutional prohibition against ex post facto laws. As the Court of Appeals correctly concluded, the Treaty is neither a piece of criminal legislation nor a criminal procedural statute. "It merely provides for the extradition of persons wanted for prosecution of an offense or a crime which offense or crime was already committed or consummated at the time the treaty was ratified." 27 In signing the Treaty, the government of the Philippines has determined that it is within its interests to enter into agreement with the government of Australia regarding the repatriation of persons wanted for criminal offenses in either country. The said Treaty was concurred and ratified by the Senate in a Resolution dated September 10, 1990. Having been ratified in accordance with the provisions of the 1987 Constitution, the Treaty took effect thirty days after the requirements for entry into force were complied with by both governments. LLjur WHEREFORE, finding no reversible error in the decision of respondent Court of Appeals, we hereby AFFIRM the same and DENY the instant petition for lack of merit.

SO ORDERED.

EN BANC [G.R. No. 128096. January 20, 1999.] PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES,respondents.

differences. Since it is within the power of the Congress to define the jurisdiction of courts subject to the constitutional limitations, it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Moreover, petitioner's and intervenor's contention that their right to a twotiered appeal which they acquired under RA 7975 has been diluted by the enactment of RA 8249 is incorrect. The same contention had already been rejected by the Court considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right to appeal is not included in the prohibition against ex post facto law. RA 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post factolaw. Anent the issue of jurisdiction, the Court ruled that for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of those accused PNP officers, the offense charged in the subject criminal cases is plain murder and therefore, within the exclusive jurisdiction of the Regional Trial Court, not the Sandiganbayan. Accordingly, the constitutionality of Sections 4 and 7 of RA 8249 is sustained and the Addendum to the March 5, 1997 resolution of the Sandiganbayan is reversed. CaEIST

ROMEO M. ACOP and FRANCISCO G. ZUBIA, JR., petitionersintervenors.

Fortun Narvasa & Salazar for petitioner. Chavez Laureta & Associates for petitioners-intervenors. The Solicitor General for public respondents. Free Legal Assistance Group for private respondents.

SYLLABUS 1.REMEDIAL LAW; JURISDICTION; SANDIGANBAYAN; REQUISITES TO FALL UNDER ITS EXCLUSIVE JURISDICTION. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the AntiGraft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a), (b), (c) and (e) is a public official or employee holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. ICASEH 2.ID.; ID.; ID.; WHAT DETERMINES THE SANDIGANBAYAN'S JURISDICTION IS THE OFFICIAL POSITION OR RANK OF THE OFFENDER. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's official functions. Thus, under said paragraph b,

SYNOPSIS This is a petition for prohibition and mandamus filed by petitioner Panfilo M. Lacson and petitioners-intervenors Romeo Acop and Francisco Zubia, Jr. questioning the constitutionality of Sections 4 and 7 of Republic Act 8249 an Act which further defines the jurisdiction of the Sandiganbayan. They also seek to prevent the Sandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 against them on the ground of lack of jurisdiction. They further argued that if the case is tried before the Sandiganbayan, their right to procedural due process would violate as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under RA 7975, before recourse to the Supreme Court. TSEcAD The Court ruled that the challengers of Sections 4 and 7 of RA 8249 failed to rebut the presumption of constitutionality and reasonableness of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under RA 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real

what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. 3.CRIMINAL LAW; EX POST FACTO LAW; DEFINED; REPUBLIC ACT 8249 NOT AN EX POST FACTO LAW. Again, this contention is erroneous. There is nothingex post facto in R.A. 8249. In Calder v. Bull, an ex post facto law is one (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed, (d) which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant, (e) every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage. This Court added two more to the list, namely: (f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g) deprives a person accused of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. Ex post facto law, generally, prohibits retrospectively of penal laws. R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature and provide for their punishment. R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statue, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. 4.REMEDIAL LAW; CRIMINAL PROCEDURE; RIGHT TO APPEAL IS NOT A NATURAL RIGHT BUT STATUTORY IN NATURE THAT CAN BE REGULATED BY LAW. Petitioner's and intervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. Moreover, the law did not alter the rules of evidence or the mode of trial. It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. In any case, R.A. 8249 has preserved the accused's right appeal to the Supreme Court to review questions of law. On the removal of the intermediate review of facts, the Supreme Court still has the

power of review to determine if the presumption of innocence has been convincingly overcome. ESTDIA 5.ID.; SANDIGANBAYAN; JURISDICTION; DEFINED; SECTION 4 OF REPUBLIC ACT 8249 REQUIRES THAT THE OFFENSE CHARGED MUST BE COMMITTED BY THE OFFENDER IN RELATION TO HIS OFFICE IN ORDER FOR THE SANDIGANBAYAN TO HAVE JURISDICTION OVER IT. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or information, and not by the evidence presented by the parties at the trial. As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by public officers and employees, including those in government-owned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new [1987] Constitution when it declared in Section 4 thereof that the Sandiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law."

6.ID.; ID.; ID.; MERE ALLEGATION IN THE INFORMATION THAT THE OFFENSE WAS COMMITTED BY THE ACCUSED PUBLIC OFFICER IN RELATION TO HIS OFFICE IS NOT SUFFICIENT TO FALL UNDER THE JURISDICTION OF SANDIGANBAYAN. The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: "It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. "In (People vs. Montejo(108 Phil. 613 [1960]), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policemen and . . . special policemen appointed and provided by him with pistols and high power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed, entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who died in consequence thereof.

We held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. "Unlike inMontejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose, they spot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, not the Sandiganbayan.

(PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP officers and personnel allegedly involved in the May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1 However, a review board led by Overall Deputy Ombudsman Francisco Villa modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. This recommendation was approved by the Ombudsman, except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) informations for murder 2 before the Sandiganbayan'sSecond Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-the-fact. Upon motion by all the accused in the 11 informations, 3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4

DECISION

MARTINEZ, J p: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent theSandiganbayan from proceeding with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. LLphil The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, were slain along Commonwealth Avenue in Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chief Superintendent Jewel Canson of the Philippine National Police After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations 5 before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and others. One of the accused 6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. cda

Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher. prLL On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No. 1094 11 (sponsored by Representatives Edcel C. Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining/expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the Philippines on February 5, 1997. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day, 15 the Sandiganbayan issued an ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: "After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon, Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion.

"Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases. "To recapitulate, the net result of all the foregoing is that by the vote of 3 to 2, the court admitted the Amended Informations in these cases and by the unanimous vote of 4 with 1 neither concurring nor dissenting, retained jurisdiction to try and decide the cases." 16 [Emphasis supplied] Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all cases pending in any court over which trial has not begun as of the approval hereof." Petitioner argues that: "a)The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereover to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has footdragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975). "b)Retroactive application of the law is plain from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due process. "c)The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26(1), Article VI of the Constitution." 17

xxx xxx xxx

For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Sections 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan." 18 They further argued that if their case is tried before theSandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed in Criminal Cases Nos. 2304723057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayan was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: "SEC. 5.The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law." The said special court is retained in the new (1987) Constitution under the following provision in Article XI, Section 4:

"Section 4.The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law." Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20 of Batas Pambansa Blg. 129, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases: "SEC. 4.Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: "SEC. 4.Jurisdiction. The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: "a.Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1)Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a)Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b)City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c)Officials of the diplomatic service occupying the position of consul and higher;

(d)Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e)Officers of the Philippine National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher; cdphil (f)City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g)Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2)Members of Congress or officials thereof classified as Grade '27' and up under the Compensation and Position Classification Act of 1989; (3)Members of the judiciary without prejudice to the provisions of the Constitution; (4)Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5)All other national and local officials classified as Grade '27' or higher under the Compensation and Position Classification Act of 1989. "b.Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. "c.Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. "In cases where none of the accused are occupying positions corresponding to salary Grade '27' or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned

above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended. "The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. "The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. "The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986.

"In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx xxx." (Emphasis supplied) Section 7 of R.A. No. 8249 states:

"SEC. 7.Transitory provision. This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof." (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: "SEC. 2.Section 4 of the same decree [Presidential Decree No. 1606, as amended] is hereby further amended to read as follows: "SEC. 4.Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: "a.Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the principal accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1)Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a)Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b)City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c)Officials of the diplomatic service occupying the position of consul and higher; (d)Philippine Army and air force colonels, naval captains, and all officers of higher rank;

(e)PNP chief superintendent and PNP officers of higher rank; (f)City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g)Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2)Members of Congress or officials thereof classified as Grade '27' and up under the Compensation and Position Classification Act of 1989; (3)Members of the judiciary without prejudice to the provisions of the Constitution; (4)Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5)All other national and local officials classified as Grade '27' or higher under the Compensation and Position Classification Act of 1989. "b.Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. "c.Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A. "In cases where none of the principal accused are occupying positions corresponding to salary Grade '27' or higher, as prescribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129.

"The Sandiganbayan shall exercise exclusive appellate jurisdiction on appeals from the final judgments, resolutions or orders of regular courts where all the accused are occupying positions lower than grade '27,' or not otherwise covered by the preceding enumeration. xxx xxx xxx "In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. xxx xxx xxx." (Emphasis supplied) Section 7 of R.A. No. 7975 reads: "SEC. 7.Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts." Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, 29 contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender committing the offenses in items (a),(b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office.

Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing provision on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses orfelonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of [Section 4, R.A. 8249] in relation to their office." The phrase "other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's official functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in paragraphs a, b and c of the same Section 4 donot make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and intervenors' posture that Sections 4 and 7 of R.A. 8249 violate their right to equal protection of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely: (1)it must rest on substantial distinction; (2)it must be germane to the purpose of the law; (3)must not be limited to existing conditions only, and (4)must apply equally to all members of the same class. 35 all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonableness of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commenced and whose cases could have been affected by the amendments of

the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to provide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all cases involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that the Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249).

Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post facto law is one (a)which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b)which aggravates a crime or makes it greater than when it was committed; or (c)which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; (d)which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant; 43 (e)Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage. 44 This Court added two more to the list, namely: (f)that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g)deprives a person accused of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. 45 Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not a penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of their nature, and provide for their punishment. 48 R.A. 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional.cdpr

In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of theSandiganbayan 38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. 39 R.A. 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committee hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40 Petitioner and intervenors further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975.

Petitioner's and intervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws.51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. 54 In any case, R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law. 55 On the removal of the intermediate review of facts, the Supreme Court still has the power of review to determine if the presumption of innocence has been convincingly overcome. 56 Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expansion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of theSandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its powers since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define,prescribe, and apportion the jurisdiction of various courts." 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdiction over the multiple murder case against herein petitioner and intervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or information, 61and not by the evidence presented by the parties at the trial. 62

As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by public officers and employees, including those in government-owned or controlled corporations "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan "shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law." The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accused PNP officers. In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions. 65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the information." 66 As to how the offense charged be stated in the information, Section 9 Rule 110 of the Revised Rules of Court mandates: "SEC. 9.Cause of accusation. The acts or omissions complained of as constituting the offense must be stated in ordinary and concise language without repetition, not necessarily in the terms of the statute defining the offense, but in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment." (Emphasis supplied) As early as 1954, we pronounced that "the factor that characterizes the charge is the actual recital of the facts." 67 "The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information." 68

The noble object of written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69
"

The object of this written accusations was First. To furnish the accused with such a description of the charge against him as will

enable him to make his defense; and second, to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and third, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. In order that this requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent; these must be set forth in the complaint with reasonable particularity of time, place, names (plaintiff and defendant), and circumstances. In short, the complaint must contain a specific allegation of every fact and circumstance necessary to constitute the crime charged." (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him, as "he is presumed to have no independent knowledge of the facts that constitute the offense." 70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting ofspecific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations 71 for murder reads: "AMENDED INFORMATION "The undersigned Special Prosecution Officer III, Office of the Ombudsman, hereby accuses, CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA and PO2 ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalized under Article 248 of the Revised Penal Code committed as follows: "That on or about May 18, 1995, in Mariano Marcos Avenue, Quezon City, Philippines, and within the jurisdiction of this

Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring, with intent to kill and using firearms, with treachery, evident premeditation and taking advantage of their superior strengths, did then and there willfully, unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. "That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M . LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA, JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG, committing the acts in relation to office as officers and members of the Philippine National Police, are charged herein as accessories after-the-fact for concealing the crime herein above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paraaque, Metro Manila, on or about the early dawn of May 18, 1995. "CONTRARY TO LAW" While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to their public office," there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intervenors as among the accessories after-the-fact, the amended information is vague on this. It is alleged therein that the said accessories concealed "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paraaque, Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the

amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision,Paraaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred "in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the said accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. prcd The stringent requirement that the charge be set forth with such particularity as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer "in relation to his office" is not sufficient. That phrase is merely a conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: "It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information, and not by the result of evidence after trial. "In (People vs.) Montejo (108 Phil. 613 [1960]), where the amended information alleged: Leroy S. Brown, City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policemen and . . . special policemen, appointed and provided by him with pistols and high power guns and then established a camp . . . at Tipo-tipo, which is under his command . . . supervision and control, where his co-defendants were stationed, entertained criminal complaints and conducted the corresponding investigations, as well as assumed the authority to arrest and detain persons without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders, his co-defendants arrested and maltreated Awalin Tebag, who died in consequence thereof.

we held that the offense charged was committed in relation to the office of the accused because it was perpetrated while they were in the performance, though improper or irregular, of their official functions and would not have been committed had they not held their office; besides, the accused had no personal motive in committing the crime; thus, there was an intimate connection between the offense and the office of the accused. "Unlike in Montejo, the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused, for the purpose of extracting or extorting the sum of P353,000.00, abducted, kidnapped, and detained the two victims, and failing in their common purpose, they shot and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial." In the aforecited case of People vs. Montejo, it is noteworthy that the phrase "committed in relation to public office" does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, 73 not the Sandiganbayan.

WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over said cases. LLphil SO ORDERED.

FIRST DIVISION [G.R. No. 128508. February 1, 1999.] DANIEL G. FAJARDO, petitioner, vs. COURT OF APPEALS, HON. FLORENTINO P. PEDRONIO, in his capacity as Presiding Judge, Regional Trial Court, Branch 31, Iloilo City; PEOPLE OF THE PHILIPPINES and STATION COMMANDER OF ILOILO CITY, respondents.

on October 5, 1985, "was printed in Volume 81 of the Official Gazette dated December 30, 1985 but said issue was released for circulation only on July 1, 1986; hence, P.D. 1990 became effective after fifteen (15) days from July 1, 1986, in accordance with Article 2 of the Civil Code, or on July 16, 1986." It is not ex post facto in its application. The law applies only to accused convicted after its effectivity. An ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. Presidential Decree No. 1990, like the Probation Law that it amends, is not penal in character. It may not be considered as an ex post facto law. CHcETA 2.ID.; ID.; NOT APPLICABLE IN CASE AT BAR. At the time of the commission of the offense charged violation of Batas Pambansa Bilang 22 in 1981, petitioner could have appealed if convicted and still availed himself of probation. However, petitioner was convicted on May 26, 1988, and he appealed. At that time, petitioner no longer had the option to appeal and still apply for probation if unsuccessfull in the appeal. Presidential Decree No. 1990 was then in full effect. Hence, he could no longer apply for probation since he had appealed. AIcaDC

Resurrecion S. Salvilla for petitioner.

SYNOPSIS On May 26, 1988, petitioner Daniel Fajardo was convicted for violation of Batas Pambansa Bilang 22 and was sentenced to suffer the penalty of eight months imprisonment. He appealed, but the Court of Appeals affirmed the conviction. The Supreme Court likewise denied his petition for review on certiorari of his conviction. Upon remand of the record of the case to the trial court, Fajardo filed an application for probation contending that Presidential Decree No. 1990 was not yet in effect when he committed the offense in 1981, hence, it was not applicable to him otherwise, it could be an ex post facto law. But still, the trial court denied his application for probation. The Court of Appeals also denied his petition for certiorari. Hence, this appeal. cIADaC We deny the petition. The Court ruled that at the time of the commission of the offense charged violation of Batas Pambansa Bilang 22 in 1981, petitioner could have appealed if convicted and still availed himself of probation. However, petitioner was convicted on May 26, 1988, and he appealed. At that time, petitioner no longer had the option to appeal and still apply for probation if unsuccessful in the appeal. Presidential Decree No. 1990 was then in full effect. Hence, he could no longer apply for probation since he had appealed. The petition was DENIED. STcHDC On May 26, 1988, the Regional Trial Court, Branch 33, Iloilo City, convicted petitioner of violation of Batas Pambansa Bilang 22, and sentenced him to suffer the penalty of eight (8) months imprisonment and to pay the costs, in Criminal Case No. 14196. He appealed to the Court of Appeals. 1 By decision promulgated on February 27, 1990, the Court of Appeals affirmed the conviction. On August 20, 1990, the Supreme Court denied a petition for review on certiorari of the conviction. 2 SYLLABUS 1.CRIMINAL LAW; PROBATION; PRESIDENTIAL DECREE NO. 1990 IS NOT AN EX POST FACTO LAW. Presidential Decree No. 1990, is valid. Presidential Decree No. 1990, enacted Upon the remand of the record to the lower court, on June 2, 1995, petitioner filed a motion for probation contending that he was eligible for probation because at the time he committed the offense in 1981, an accused who had appealed his conviction was still qualified to apply for probation and that the law that barred an application for probation of an accused who DECISION

PARDO, J p: The case is an appeal via certiorari taken by petitioner from a decision of the Court of Appeals that denied due course to his motion for probation in Criminal Case No. 14196 of the Regional Trial Court, Branch 31, Iloilo City, arising from his conviction of violation of Batas Pambansa Bilang 22, for which he was sentenced to imprisonment of eight (8) months. cdasia

had interposed an appeal was ex post facto in its application, and, hence, not applicable to him. On January 5, 1996, the trial court denied petitioner's motion for probation. On July 29, 1996, petitioner filed with the Court of Appeals a petition for certiorari to annul the lower court's denial of his application for probation. 3 On November 12, 1996, the Court of Appeals denied due course to the petition. 4 Hence, this appeal. 5 At issue in this case is whether petitioner could qualify to apply for probation under Presidential Decree No. 968 since he had appealed from his conviction in 1988, after Presidential Decree No. 1990 amending Presidential Decree No. 968, became effective in 1986, providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." 6 Petitioner maintains the view that Presidential Decree No. 1990, issued on October 5, 1985, is null and void on the ground that at that time President Ferdinand E. Marcos could no longer exercise legislative powers as the Batasan Pambansa was functioning and exercising sole legislative powers. The contention is without merit. At that time, President Marcos was vested with legislative powers concurrently with the Batasan Pambansa. 7 Consequently, Presidential Decree No. 1990, is valid. Presidential Decree No. 1990, enacted on October 5, 1985, "was printed in Volume 81 of the Official Gazette dated December 30, 1985 but said issue was released for circulation only on July 1, 1986; hence, PD 1990 became effective after fifteen (15) days from July 1, 1986, in accordance with Article 2 of the Civil Code, or on July 16, 1986." 8 It is not ex post facto in its application. The law applies only to accused convicted after its effectivity. 9 An ex post facto law is one that punishes an act as a crime which was innocent at the time of its commission. 10 Presidential Decree No. 1990, like the Probation Law that it amends, is not penal in character. 11 It may not be considered as an ex post facto law. 12 At the time of the commission of the offense charged violation of Batas Pambansa Bilang 22 in 1981, petitioner could have appealed if convicted and still availed himself of probation. However, petitioner was convicted on May 26, 1988, and he appealed. At that time, petitioner no longer had the option to appeal and still apply for probation if unsuccessful in the appeal. 13 Presidential Decree No. 1990 was then in full effect. Hence, he could no longer apply for probation since he had appealed. On October 13, 1997, the Solicitor General 14 submitted a manifestation positing the view that petitioner's application for probation may still be considered because when petitioner committed the offense in 1981, he could avail himself of probation since the law as it stood at that time provided that an accused convicted of a crime may apply for probation even if he

had appealed the conviction. 15 We do not share his view. The case he cited is a Court of Appeals decision, and, hence, not a precedent. What is more, it is inapplicable because there, the accused's conviction became final on October 14, 1985. Presidential Decree No. 1990 although enacted on October 5, 1985, was published in the Official Gazette on December 30, 1985, 16 and, hence, was not yet applicable at the time the accused was finally convicted. Regrettably, the Solicitor General has cited a Court of Appeals decision that is inapplicable to this case because the facts were not similar. We find it unnecessary to resolve the other issues that petitioner has raised questioning the constitutionality and wisdom of Presidential Decree No. 1990, amending the probation law. WHEREFORE, the Court DENIES the petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. SP No. 41447. Costs against petitioner. LLjur SO ORDERED.

FIRST DIVISION [G.R. No. 132214. August 1, 2000.] THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ZALDY CASINGAL, accused-appellant.

in its decision that the testimony of Cruz was direct, frank, unfaltering and straightforward. As to the charge of illegal possession of firearm, the accused cannot be charged separately with this offense. It can only be treated as a special qualifying circumstance. Even then, the prosecution was not able to prove that the accused lacked the license or permit to own or possess the firearm. This omission is fatal to the prosecution. The crime of the accused cannot be qualified as having been committed with an unlicensed, illegally possessed firearm. Casingal was found guilty of homicide only.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

SYLLABUS 1.CRIMINAL LAW; REPUBLIC ACT NO. 8294; USE OF UNLICENSED FIREARM SHALL BE CONSIDERED AS SPECIAL AGGRAVATING CIRCUMSTANCE IN HOMICIDE OR MURDER. On June 6, 1997, Republic Act 8294 amended P.D. 1866 which codified the laws on illegal possession of firearms. Among its amendments was that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. The amendment meant: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but as a special aggravating circumstance; second, as a single crime is committed (i.e., homicide or murder with the aggravating circumstance of illegal possession of firearm), only one penalty shall be imposed on the accused. 2.ID.; ID.; ID.; RETROACTIVELY APPLIED IF FAVORABLE TO THE ACCUSED. This Court has previously ruled that R.A. 8294 is favorable to the accused, and should thus be retroactively applied in the present case. It was thus error for the trial court to convict the accused of two separate offenses, i.e., Murder and Illegal Possession of Firearm and Ammunitions. The crime for which the accused may be charged is murder, aggravated by illegal possession of firearm. CSTcEI 3.REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; POSITIVE IDENTIFICATION REQUIRES ONLY PROOF OF IDENTITY AND NOT PER SE AN EYEWITNESS ACCOUNT OF THE VERY ACT OF COMMITTING THE CRIME. Positive identification requires essentially proof of identity and not per se an eyewitness account of the very act of committing the crime. A witness may identify an accused as the perpetrator of the crime by direct evidence, i.e., an eyewitness account of the commission of the crime. There are instances, however, when a witness may not have actually seen the very act of commission of a crime, but he may still be able to identify the accused as the perpetrator as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. In this case, the positive identification forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. Otherwise, if circumstantial evidence could not be resorted to in proving the identity of the accused when direct evidence is not available, then felons would go scot-free and the community would be denied proper protection.

SYNOPSIS Zaldy Casingal was charged and convicted with the crimes of Murder and Illegal Possession of Firearm and Ammunition. During the trial, the prosecution presented Edgardo Mula Cruz who testified that on the May 8, 1995 local elections, at about 8:15 in the evening, he was near the gate of Sawat Elementary School in Brgy. Sawat, Urbiztondo, Pangasinan waiting for Diosdado Palisoc who went home to get food. Cruz was talking with friends when he saw Palisoc coming. Then, he heard a gunshot. When he turned his head towards its direction, he saw Palisoc, at first, facing accused Zaldy Casingal then he fell to the ground. Casingal, who was carrying a U.S. carbine caliber .30, ran towards the house of Francisca Galpao. One of the policemen assigned for the elections brought Palisoc to the hospital, but Palisoc expired in the operating room. Some bloodstains, a fired bullet and a cartridge of a caliber .30 were recovered at the scene of the crime. The following day, Casingal was arrested, and pursuant to a search warrant, one carbine caliber .30 with serial no. 5611988, one long magazine and 30 rounds of live ammunition were found in the house of Francisca Galpao. For the defense, Casingal testified that it was Ernesto Payaoan who shot the victim. However, Payaoan immediately passed to him the firearm and instructed him to run and bring the gun to the house of Francisca Galpao. ITAaHc As to the applicable law, the Court declared that on June 6, 1997, Republic Act 8294 amended P.D. 1866 which codified the laws on illegal possession of firearms. Among its amendments was that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. In this case, the positive identification forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. It is not decisive that Cruz did not actually see the accused shoot the victim. But immediately after the victim was shot, Cruz saw the accused holding the carbine which felled the victim, and then accused ran towards the house of Francisca Galpao. The trial court noted

4.ID.; ID.; CIRCUMSTANTIAL EVIDENCE; SUFFICIENT TO SUSTAIN CONVICTION OF ACCUSED; REQUISITES. The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused. 5.ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. In fine, it is not decisive that Cruz did not actually see the accused shoot the victim. But immediately after the victim was shot, Cruz saw the accused holding the carbine which felled the victim, and then accused ran towards the house of Francisca Galpao. . . . Cruz's positive identification of the accused as the victim's assailant is corroborated by several pieces of circumstantial evidence. Immediately after Cruz heard a gunshot, he saw the accused carrying a U.S. carbine caliber .30 and running towards the house of one Francisca Galpao. The day after the shooting incident, carbine caliber .30 with serial number 5611988 with one long magazine and 30 rounds of live ammunition of the same caliber were seized in the house of Francisca Galpao. The paraffin test conducted upon the seized carbine and upon the accused yielded positive results. The ballistic examination also showed that the fired cartridge and slug found at the crime scene were the same with the cartridge and slug that were found in the house of Francisca Galpao and test-fired from the seized carbine submitted for ballistic examination. These pieces of circumstantial evidence point to the accused as Palisoc's assailant. 6.ID.; ID.; CREDIBILITY OF WITNESSES; WITNESS' TESTIMONY IS GIVEN FULL FAITH AND CREDIT IN THE ABSENCE OF EVIDENCE THAT HE WAS ACTUATED BY ANY IMPROPER MOTIVE. The trial court noted in its decision that the testimony of Cruz was ". . . direct, frank, unfaltering and straightforward . . . His testimony bore 'the marks of truth and sincerity,' having been delivered spontaneously, naturally and in straightforward manner." It also found that there is ". . . nothing in the records which would show any base motive or vile reason on the part of the witness to falsely implicate the herein accused." It is well-settled that where there is no evidence that the witness against the accused was actuated by any improper motive, and absent any compelling reason to conclude otherwise, his testimony will be given full faith and credit. 7.ID.; ID.; WEIGHT AND SUFFICIENCY; BEYOND REASON AND COMMON SENSE FOR A PERSON TO HAVE TAKEN HOLD OF CARBINE IN FULL VIEW OF PEOPLE NEAR THE CRIME SCENE MINDLESS OF THE DANGER THAT IT WOULD INCRIMINATE HIM. The accused's lone testimony that the supposed triggerman, Ernesto Payaoan, only handed to him the carbine used in killing the victim and that he accepted and ran away with it is not credible. As held in People v. Maliput, "far from bordering merely on the imaginary, captious or plainly being a possible doubt, any reasonable doubt must be nothing less than a fair doubt based on reason and common sense (italics supplied)." Certainly, it is beyond reason and common sense for the accused to have taken hold of the carbine in full view of the people near the crime scene mindless of the danger that it would incriminate him. TAIESD 8.CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; TREACHERY; REQUISITES. To prove treachery, the following must be shown: (1) the employment of means of execution that gives

the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution. 9.ID.; ID.; ID.; TO BE APPRECIATED, THE MANNER OF ATTACK MUST BE PROVEN. It is also the running case law that where treachery is alleged, the manner of attack must be proven. Without any particulars as to the manner in which the aggression commenced or how the act which resulted in the victim's death unfolded, treachery cannot be appreciated. 10.ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. In the case at bar, prosecution witness Cruz testified on what transpired immediately after the killing of the victim. He had no knowledge of the circumstances before the shooting and the shooting itself. There is therefore no proof that the victim had no opportunity to defend himself or to retaliate. Nor is there any evidence to show that the victim was unarmed. Even assuming arguendo that the attack is sudden, there is no evidence that the means of execution was deliberately adopted. The finding of the trial court that the accused shot the victim several times does not find support from the evidence on record.

11.ID.; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; REQUISITES. There is evident premeditation when the following facts are proven: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to his determination to commit the crime; and (3) the lapse of sufficient period of time between the decision and the execution of the crime, to allow the accused to reflect upon the consequences of his act. 12.ID.; ID.; ID.; NOT APPRECIATED IN CASE AT BAR. A close scrutiny of the accused's testimony, however, will show that he testified that it was not him but Payaoan who planned to kill the victim and clung to his determination to kill, and that there was sufficient interval of time between the premeditation and the execution of the crime to allow Payaoan to reflect upon the consequences of his act. There is no proof whatsoever with respect to the accused's plan to kill the victim and when he conceived of such plan. 13.ID.; HOMICIDE; NO AGGRAVATING OR MITIGATING CIRCUMSTANCE; IMPOSABLE PENALTY. There being no circumstance to qualify the killing to murder, the accused should be convicted of homicide. The penalty imposed upon the accused should correspondingly be lowered to reclusion temporal. As there is no aggravating or mitigating circumstance, the proper imposable penalty is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the minimum term is anywhere within the range of prision mayor, or from six (6) years and one (1) day to twelve (12) years, and the maximum within the range ofreclusion temporal in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months.

14.ID.; ID.; CIVIL LIABILITY; AWARD OF PECUNIARY LIABILITIES IMPOSED BY THE TRIAL COURT IS MODIFIED. [W]e have to modify the pecuniary liabilities imposed by the trial court. As the accused is liable only for homicide, he cannot be ordered to pay a fine of P30,000.00. The award of exemplary damages cannot also be given. Under Art. 2230 of the Civil Code, "(i)n criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances." The evidence on record does not show any aggravating circumstance. We sustain the award of moral damages as the prosecution was able to prove that the victim's death caused the latter's family extreme grief, sleepless nights and loss of appetite. Funeral and other related expenses are likewise adequately supported by the evidence on record. 15.ID.; ILLEGAL POSSESSION OF FIREARMS; NOT SUBSTANTIATED IN CASE AT BAR. [T]o the charge of illegal possession of firearm, . . . the accused cannot be charged separately with this offense. It can only be treated as a special qualifying circumstance. Even then, the prosecution was not able to prove that the accused lacked the license or permit to own or possess the firearm. While the prosecution presented a photocopy of a certification issued by the PNP Firearms and Explosives Unit stating that the accused was not a licensed holder of a firearm of any kind and caliber; it failed to submit the original of the same. Rule 130, Sec. 3 of the Rules of Court provides: "Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases . . ." The subject certification does not fall under the exception. Hence, we cannot give any evidentiary value to the photocopy of the certification. Neither did the prosecution present the testimony of a representative of the PNP Firearms and Explosive Unit to establish that the accused is not licensed to possess carbine caliber .30 with serial number 5611988. This omission is fatal to the prosecution. In fine, the crime of the accused cannot be qualified as having been committed with an unlicensed, illegally possessed firearm.

intent to kill, with treachery and evident premeditation, did then and there, willfully, unlawfully and feloniously shoot one Diosdado Palisoc with a U.S. Carbine cal. 30 inflicting upon him the following injuries: Gunshot wound on the left chest POE: 0.5 cm., anterior shoulder POX: 0.5 cm. 5th ICS-L paravertebral line Hypovolemic shock which caused the death of said Diosdado Palisoc as a consequence, to the damage and prejudice of his heirs. Contrary to Article 248 of the Revised Penal Code." 1 In Criminal Case No. 2412, he was likewise charged with the crime of Illegal Possession of Firearm and Ammunition. The Information states: "That on or about May 8, 1998, in Barangay Sawat, municipality of Urbiztondo, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there, willfully, unlawfully and feloniously have in his possession, custody and control one (1) U.S. Carbine caliber 30 with ammunition, without first securing the necessary permit and license to possess the same, which he used in the commission of the crime of Murder. aDTSHc Contrary to P.D. 1866." 2

DECISION

PUNO, J p: The accused pled not guilty to both crimes. Trial proceeded in due course. Must a man be brought behind bars when no one saw him pull the trigger of the carbine that felled his fellowman? In Criminal Case No. SCC-2411, the accused-appellant was charged with the crime of Murder in an Information which states: "That on or about May 8, 1995, in Barangay Sawat, municipality of Urbiztondo, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with The facts of the shooting incident are based mainly on the narration of prosecution witness Edgardo Mula Cruz. It appears that on the May 8, 1995 local elections, at about 8:15 p.m., Cruz was near the gate of Sawat Elementary School in Barangay Sawat, Urbiztondo, Pangasinan, waiting for Palisoc, the victim. 3 Palisoc went home to get food or "baon" for Cruz and himself. 4 Cruz was talking with his friends and facing the road when he saw Palisoc coming. 5 He heard a gunshot, and when he turned his head towards its direction, he saw Palisoc facing the accused and falling to the ground. Carrying a U.S. carbine caliber .30, the accused ran towards the house of one Francisca Galpao. 6 The area where the shooting incident took place was lighted by an electric bulb near the school gate. Cruz stood seven

meters from both the victim and the accused whom he (Cruz) knew personally as they were neighbors. 7 After the accused left the crime scene, Cruz sought assistance from the policemen assigned at the Sawat Elementary School for the elections. 8 One of the policemen brought Palisoc to the Virgen Milagrosa Medical Hospital. 9 Palisoc expired in the operating room, the gunshot wound on his chest causing his death. 10 Cruz returned to the Sawat school to act as pollwatcher. 11 The following day, he executed an affidavit narrating the shooting incident. 12 An investigation team was dispatched to the crime scene where some bloodstains, a fired bullet caliber .30 and fired caliber .30 cartridge were found. 13 On May 9, 1995, the accused was arrested in the house of one Mimi Payaoan in Barangay Salavante, Urbiztondo, Pangasinan. On the same day, pursuant to a search warrant, one (1) carbine caliber .30 with serial number 5611988 with one long magazine and 30 rounds of live ammunition were found in the house of Francisca Galpao. 14 The firearm with the magazine and ammunitions, as well as the fired bullet and cartridge were submitted for ballistic examination conducted by Police Inspector Pascual G. Mangal-ip. 15 Police Inspector Mangal-ip testified that the fired cartridge and slug found at the crime scene were the same with the cartridge and slug found in the house of Francisca Galpao and testfired from the carbine submitted for ballistic examination. He concluded that the cartridge and slug found at the crime scene came from carbine caliber .30 with serial number 5611988. 16 Chief Inspector Theresa Ann Bugayong Cid also testified that the paraffin test on the presence of gunpowder nitrates on the hands of the accused and on said carbine caliber .30 yielded positive results. 17 The version of the defense was presented through the sole testimony of the accused. He did not dispute that the victim was shot on the night of May 8, 1995 with the use of carbine caliber .30 with serial number 5611988. 18 Nor did he deny his presence at the crime scene. 19 He, however, pointed to another person as the triggerman. ISTECA The accused testified that on May 3, 1995, while in Baguio City, he received a letter from a certain Ernesto Payaoan, requesting him to go to Urbiztondo, Pangasinan to help in the local elections. 20 The accused obliged and arrived in Urbiztondo on May 7, 1995. He spent the night in the house of Francisca Galpao. 21 The next morning, Payaoan came and instructed the accused to clean carbine caliber .30 with serial number 5611988 and to fire it to test its condition. The accused did as instructed and then gave the firearm back to Payaoan. 22 He asked Payaoan why the gun was being tested and Payaoan revealed that he would kill Diosdado Palisoc. The accused tried to stop Payaoan as Palisoc was his second cousin, but to no avail. 23 On May 8, 1995, at about 7:30 in the evening, the accused and Payaoan went to Sawat Elementary School. Payaoan brought the carbine with him. 24 When they saw Palisoc, Payaoan shot the victim and passed the firearm to the accused. He ordered the accused to run and bring the gun to the house of Francisca Galpao. 25 His story was reduced to an affidavit which he executed about seven (7) months after the shooting incident or on

December 20, 1995. 26 On January 25, 1996, he executed another affidavit 27 retracting his December 20, 1995 affidavit. On February 13, 1996, he made another affidavit 28 recanting his second affidavit. The accused likewise claimed that while in detention in the Municipal Jail of Urbiztondo, Pangasinan, he confided to SPO1 Teofilo Garcia that it was Payaoan who killed Palisoc. 29

Payaoan testified as a rebuttal witness. He declared that on May 7 and 8, 1995, he was at the Regional PNP Command on standby detail because they were on red alert for election duties. 30 At that time, he was a member of the General Services Group, PNP Recom 1, San Fernando, La Union. He buttressed his claim with a certification that on May 6-9, 1995, he was in the camp vicinity in San Fernando, La Union for election duties. 31 The prosecution likewise presented SPO1 Teofilo Garcia. He confirmed that the accused was a detention prisoner in the Municipal Jail of Urbiztondo, Pangasinan from May up to June 1995, but denied that the accused confided to him that it was Payaoan who shot Palisoc. 32 The trial court found the accused guilty beyond reasonable doubt of both Murder and Illegal Possession of Firearm and Ammunitions. 33 Hence, this appeal with the lone assignment of error, viz: "THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF MURDER AND VIOLATION OF P.D. 1866 DESPITE THE FACT THAT THE PROSECUTION FAILED TO SUBSTANTIATE HIS GUILT BEYOND REASONABLE DOUBT." Prefatorily, we shall discuss the applicable law. On June 6, 1997, Republic Act 8294 amended P.D. 1866 which codified the laws on illegal possession of firearms. Among its amendments was that if homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as a special aggravating circumstance. 34 The amendment meant: first, the use of an unlicensed firearm in the commission of homicide or murder shall not be treated as a separate offense, but as a special aggravating circumstance; second, as a single crime is committed (i.e., homicide or murder with the aggravating circumstance of illegal possession of firearm), only one penalty shall be imposed on the accused. 35 In its Joint Decision, the trial court convicted the accused of murder and illegal possession of firearm and ammunitions. It stressed that R.A. 8294 cannot be given retroactive effect for it was enacted in 1997 while the crimes charged against the accused were committed in 1995. It held that to give R.A. 8294 retroactive effect would be prejudicial to the accused and violative of Art. III, Sec. 22 of the 1987 Constitution which provides that, "(n)o ex-post facto law or bill of attainder shall be enacted." 36

We disagree. This Court has previously ruled that R.A. 8294 is favorable to the accused, and should thus be retroactively applied in the present case. 37 It was thus error for the trial court to convict the accused of two separate offenses, i.e., Murder and Illegal Possession of Firearm and Ammunitions. The crime for which the accused may be charged is murder, aggravated by illegal possession of firearm. We now examine the evidence to determine the guilt of the accused. The accused makes much of the fact that no one saw him in the act of shooting. It is true that there was no eyewitness to the shooting of the victim, but the testimony of prosecution witness Cruz is sufficient to convict the accused as responsible for the death of Palisoc. He stated in his affidavit executed the day after the shooting incident, viz: "Q.Do you know who shot Diosdado Palisoc? A.Yes sir, Zaldy Casingal also resident of Barangay Salavante, Urbiztondo, Pangasinan. 38 He likewise testified as follows: PROS. SORIANO: Q.When he fell down, what did you do? A.I called up a police, sir. Q.Before you called up a police, could you tell this Honorable Court the direction where the shot came from? A.Yes, sir. When I turned my head where the shot came from, I saw Zaldy Casingal holding a carbine going to the house of Ating Galpaw (sic). xxx xxx xxx Q.How were you able to recognize Zaldy Casingal whom you said was holding a carbine and proceeded (sic) to the house of Ating Galpaw (sic) after Diosdado Palisoc was shot? A.There was an electric bulb near the gate, sir.

Q.How far were you to (sic) Zaldy Casingal when you saw him holding a firearm proceeding to the house of Ating Galpaw? 0 A.About seven (7) meters, sir. Q.And how far were you to (sic) Diosdado Palisoc when he was shot? A.The same, sir. 39 xxx xxx xxx Q.You mentioned Zaldy Casingal as a person whom you saw carrying a firearm/carbine after Diosdado Palisoc was shot, do you know this Zaldy Casingal personally? A.Yes, sir. Q.Why do you know him? A.He is our neighbor, sir. Q.If he is now in (sic) courtroom, will you please point to him? A.(Witness pointing to a man with a mustache, and when he asked his name he answered Zaldy Casingal). 40 xxx xxx xxx ATTY. VALDEZ: Q.You said that you did not actually see who shot Diosdado Palisoc, is that correct? A.Yes, sir. 41 xxx xxx xxx ATTY. VALDEZ:

Q.After you saw Diosdado Palisoc shot, did you look to the direction where the shot came from? A.Yes, sir. Q.And you saw a person running, is that correct? xxx xxx xxx A.There is sir, it was Zaldy Casingal bringing a gun. 42 ATTY. VALDEZ: Q.When you said that you saw Zaldy Casingal bringing a gun, how far was he from the place where you were standing? A.At about seven (7) meters, sir. Q.You said that there was an electric bulb in the Sawat Elementary School, is that correct? A.Yes, sir. Q.And this electric bulb was installed inside the school room? A.It is in (sic) the gate, sir. Q.How far is this electric bulb, Mr. witness (sic)? A.It is about four (4) meters, sir. DaHSIT Q.And in the place where you saw Zaldy Casingal running with the gun, there was (sic) various obstruction on (sic) the illumination of that light, is that correct? A.None, sir, because it is a road." 43 For the accused to be convicted of murder, he must be positively identified as the assailant of the victim. Positive identification requires essentially proof of identity and not per se an eyewitness account of the very act of committing the crime. A witness may identify an

accused as the perpetrator of the crime by direct evidence,i.e., an eyewitness account of the commission of the crime. There are instances, however, when a witness may not have actually seen the very act of commission of a crime, but he may still be able to identify the accused as the perpetrator as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. In this case, the positive identification forms part of circumstantial evidence, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. Otherwise, if circumstantial evidence could not be resorted to in proving the identity of the accused when direct evidence is not available, then felons would go scot-free and the community would be denied proper protection. 44 The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following requisites concur: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused. 45 In fine, it is not decisive that Cruz did not actually see the accused shoot the victim. But immediately after the victim was shot, Cruz saw the accused holding the carbine which felled the victim, and then accused ran towards the house of Francisca Galpao. The trial court noted in its decision that the testimony of Cruz was ". . . direct, frank, unfaltering and straightforward . . . His testimony bore 'the marks of truth and sincerity,' having been delivered spontaneously, naturally and in straightforward manner." 46 It also found that there is ". . . nothing in the records which would show any base motive or vile reason on the part of the witness to falsely implicate the herein accused." 47 It is well-settled that where there is no evidence that the witness against the accused was actuated by any improper motive, and absent any compelling reason to conclude otherwise, his testimony will be given full faith and credit. 48 Cruz's positive identification of the accused as the victim's assailant is corroborated by several pieces of circumstantial evidence. Immediately after Cruz heard a gunshot, he saw the accused carrying a U.S. carbine caliber .30 and running towards the house of one Francisca Galpao. The day after the shooting incident, carbine caliber .30 with serial number 5611988 with one long magazine and 30 rounds of live ammunition of the same caliber were seized in the house of Francisca Galpao. The paraffin test conducted upon the seized carbine and upon the accused yielded positive results. The ballistic examination also showed that the fired cartridge and slug found at the crime scene were the same with the cartridge and slug that were found in the house of Francisca Galpao and test-fired from the seized carbine submitted for ballistic examination. These pieces of circumstantial evidence point to the accused as Palisoc's assailant. The defense's attempt to cast doubt upon the prosecution's theory by passing the buck to Ernesto Payaoan is futile for lack of supporting evidence. The accused's lone testimony that the supposed triggerman, Ernesto Payaoan, only handed to him the carbine used in killing the victim and that he accepted and ran away with it is not credible. As held in People v. Maliput, 49 "far from bordering merely on the imaginary, captious or plainly being a possible doubt, any reasonable doubt must benothing less than a fair doubt based on reason and

common sense (italics supplied)." 50 Certainly, it is beyond reason and common sense for the accused to have taken hold of the carbine in full view of the people near the crime scene mindless of the danger that it would incriminate him.

circumstance. Even then, the prosecution was not able to prove that the accused lacked the license or permit to own or possess the firearm. While the prosecution presented a photocopy of a certification issued by the PNP Firearms and Explosives Unit stating that the accused was not a licensed holder of a firearm of any kind and caliber, 56 it failed to submit the original of the same. Rule 130, Sec. 3 of the Rules of Court provides: "SECTION 3.Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself, except in the following cases. . ." ETAICc The subject certification does not fall under the exceptions. Hence, we cannot give any evidentiary value to the photocopy of the certification. 57 Neither did the prosecution present the testimony of a representative of the PNP Firearms and Explosive Unit to establish that the accused is not licensed to possess carbine caliber .30 with serial number 5611988. This omission is fatal to the prosecution. 58 In fine, the crime of the accused cannot be qualified as having been committed with an unlicensed, illegally possessed firearm. Prescinding from these premises, we have to modify the pecuniary liabilities imposed by the trial court. As the accused is liable only for homicide, he cannot be ordered to pay a fine of P30,000.00. The award of exemplary damages cannot also be given. Under Art. 2230 of the Civil Code, "(i)n criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances." The evidence on record does not show any aggravating circumstance. We sustain the award of moral damages as the prosecution was able to prove that the victim's death caused the latter's family extreme grief, sleepless nights and loss of appetite. 59 Funeral and other related expenses are likewise adequately supported by the evidence on record. 60 IN VIEW WHEREOF, the impugned Joint Decision is MODIFIED. The accused-appellant is found guilty of the crime of Homicide and sentenced to an indeterminate sentence of eight (8) years and one (1) day of prision mayor medium as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporalmedium as maximum. The trial court's award of P50,000.00 for civil indemnity, P20,000.00 for moral damages, and P25,000.00 for funeral and other related expenses is AFFIRMED. SO ORDERED.

However, we hold that the evidence to prove treachery or alevosia which will qualify the killing to murder is insufficient. To prove treachery, the following must be shown: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution. 51 It is also the running case law that where treachery is alleged, the manner of attack must be proven. Without any particulars as to the manner in which the aggression commenced or how the act which resulted in the victim's death unfolded, treachery cannot be appreciated. 52 In the case at bar, prosecution witness Cruz testified on what transpired immediately after the killing of the victim. He had no knowledge of the circumstances before the shooting and the shooting itself. There is therefore no proof that the victim having opportunity to defend himself or to retaliate. Nor is there any evidence to show that the victim was unarmed. Even assuming arguendo that the attack is sudden, there is no evidence that the means of execution was deliberately adopted. 53 The finding of the trial court that the accused shot the victim several times does not find support from the evidence on record. Evident premeditation cannot likewise be appreciated. There is evident premeditation when the following facts are proven: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused clung to his determination to commit the crime; and (3) the lapse of sufficient period of time between the decision and the execution of the crime, to allow the accused to reflect upon the consequences of his act. 54 The trial court appreciated this aggravating circumstance based on the accused's testimony. A close scrutiny of the accused's testimony, however, will show that he testified that it was not him but Payaoan who planned to kill the victim and clung to his determination to kill, and that there was sufficient interval of time between the premeditation and the execution of the crime to allow Payaoan to reflect upon the consequences of his act. There is no proof whatsoever with respect to the accused's plan to kill the victim and when he conceived of such plan. There being no circumstance to qualify the killing to murder, the accused should be convicted of homicide. The penalty imposed upon the accused should correspondingly be lowered to reclusion temporal. As there is no aggravating or mitigating circumstance, the proper imposable penalty is reclusion temporal in its medium period. Applying the Indeterminate Sentence Law, the minimum term is anywhere within the range of prision mayor, or from six (6) years and one (1) day to twelve (12) years, and the maximum within the range of reclusion temporal in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. 55 We come now to the charge of illegal possession of firearm. As aforediscussed, the accused cannot be charged separately with this offense. It can only be treated as a special qualifying

EN BANC [G.R. Nos. L-32613-4. April 30, 1974.] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. SIMEON N. FERRER, in his capacity as Judge of the Court of First Instance of Tarlac, Branch I; FELICIANO CO alias "Leoncio Co" alias "Bob" and NILO S. TAYAG alias "Romy Reyes" alias "Taba", respondents.

The Act is thus a conspiracy statute. The gist is the agreement itself rather than action taken pursuant to it. 3 Obviously, to require proof of direct participation of the defendant in the substantive offenses constituting the object of the conspiracy, in addition to proof of agreement, would render ineffectual the conspiracy device in penal law. The law is primarily concerned with conduct and will not intervene as long as the actor withdraws from what he has planned to do. But where the actor acts in concert with others, the likelihood of a change of heart or of a misreading of his intention is minuscule. He is less likely to desist from the criminal enterprise where others are also involved. On the contrary, the encouragement and moral support of others in conspiracy with him fortifies his perseverance. The resulting collective action toward an anti-social end gives rise to a graver danger to society than individual action toward the same end, and justifies the intervention of the law at an earlier stage. 4 Indeed, section 4 of the Act distinguishes one who only joins or maintains his membership in the CPP or other subversive organization, for whom the penalty provided is arresto mayor, from one who not only does so but as well takes up arms against the Government, for whom the Act provides a heavier penalty, namely, prision mayor to death. The respondent Tayag's thesis would obliterate this distinction. The Court's traditional avoidance of constructions of doubtful constitutionality cannot be turned into an instrument for the evisceration of a plain legislative policy. 2.Moreover, a requirement that the prosecution must prove direct participation by the defendant in the objectives of the conspiracy would run counter to another established principle in the law that where conspiracy is proved, the act of one is deemed to be the act of all. 5 That is why we referred to criminal conspiracy as a dragnet device for effectively dealing with the growth of organized crime. A contrary requirement would render society powerless to repress widespread criminality. 3.Indeed, as we noted in our decision, the requirement that membership in the CPP or in any other subversive organization be shown by overt acts was intended no more than to preclude the possibility that conviction may he obtained solely on the basis of incriminating evidence rather than positive acts of the defendant. As Senator Cea explained in the course of the deliberations on the bill: "I have inserted the words 'overt acts' because we are punishing membership in the Communist Party. I would like that membership to be proved by overt acts, by positive acts, because it may happen that one's name may appear in the list of membership." 6 Thus, where one is shown to have taken an oath of membership or signed affiliation papers in a subversive organization, knowing its illegal purposes, the requirement of the law is satisfied. Of course where, as it often happens, it cannot be shown that the defendant explicitly or expressly entered into the conspiracy, his agreement may be inferred from circumstances demonstrating concert of action. It is then that the defendant's participation in the illegal activities of the organization would constitute proof of his specific intent.

Solicitor General Estelito P. Mendoza and Assistant Solicitor General Hugo E. Gutierrez, Jr. for petitioner.

RESOLUTION

CASTRO, J p: The respondents Feliciano Co and Nilo Tayag separately seek a reconsideration of our decision in this case dated December 27, 1972. The motion for reconsideration filed by Co, being a mere reiteration of arguments previously advanced, need not detain us. It is the motion filed by Tayag that requires detailed consideration. The burden of Tayag's motion is that knowing membership alone in the Communist Party of the Philippines or in any other subversive organization cannot, consistently with the Constitution, be made the basis of criminal prosecution under the Anti-Subversion Act. He argues that such membership must be coupled with direct participation by the defendant in the illegal activities of the organization. Thus, he seeks the inclusion in the guidelines set forth in our decision of a requirement that in prosecutions under the Act the State must prove that the defendant joined or remained a member of the CPP or of the subversive organization, knowing its subversive character and with specific intent to further its basic objectives as shown by direct participation in the organization's unlawful activities. 1.The respondent Tayag's submission would nullify the legislative policy embodied in the AntiSubversion Act and frustrate prosecutions under it. On the basis of Congressional findings that the Communist Party of the Philippines is "an organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose of establishing in the Philippines a totalitarian regime . . . under the control and domination of an alien power," 1 the Act provides for the punishment of any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines." 2

4.But the over-act requirement may also be satisfied by proof of non-criminal and relatively minor acts. 7 Such acts may consist in signing membership papers, paying dues, attending meetings, and the like, which, although in themselves may not be illegal, are nevertheless acts in pursuance of the objectives of the conspiracy. As the U.S. Supreme Court explained in Yates vs. United States: 8 ". . . It is not necessary that an overt act be the substantive crime charged in the indictment as the object of the conspiracy. Nor, indeed, need such an act, taken by itself, even be criminal in character. The function of the overt act in a conspiracy prosecution is simply to manifest 'that the conspiracy is at work,' and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence." Indeed, the rationale of the Anti-Subversion Act, like that of the Smith Act involved in Yates, is that the existence of the conspiracy by itself creates the danger to national security. As held in Dennis vs. United States, 9 "the formation . . . of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders . . . felt that the time has come for action, . . . disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained because it comprises only the preparation. It is the existence of the conspiracy which creates the danger . . . . If the ingredients are present, we cannot bind the Government to wait until the catalyst is added." In the case of the CPP and other subversive groups, the danger posed is deemed in the AntiSubversion Act to be so "clear, present and grave" as to warrant the prosecution of those engaged in the conspiracy. 5.Nor is there a constitutional compulsion that the overt acts of conspiracy be evidenced by direct participation of the defendant in the illegal objectives of the organization. In the first place, there is no reason why one who actively and knowingly works in the ranks of the organization, intending to contribute to the success of its specific illegal activities, should be any more immune from prosecution than one to whom the organization has assigned or entrusted the task of carrying out the substantive criminal acts. In United States vs. Vergara, 10 for instance, it was shown that the defendants organized the Katipunan, a society for the purpose of overthrowing the Government by force, and that in pursuance of the conspiracy the defendants solicited public contributions. No overt acts of insurrection were shown, but the defendants were nevertheless held guilty of conspiracy to overthrow the Government. In the second place, the requirement of proof of specific intent precisely limits the operation of the statute only to illegal conduct. There need be no apprehension that unless direct participation by the defendant in the illegal activities of the association is shown, the statute may sweep unnecessarily broadly into protected activities, as the association may have both legal and illegal aims. In the case of the Communist Party of the Philippines, this apprehension is without basis, for the very nature of that organization as a conspiracy for the violent overthrow of the Government defines the character of its objectives.

Indeed, as was held in Scales vs. United States, 11 in answer to a similar contention, "If it is said that the mere existence of such an enactment tends to inhibit the exercise of constitutionally protected rights, in that it engenders an unhealthy fear that one may find himself unwittingly embroiled in criminal liability, the answer surely is that the statute provides that a defendant must be proven to have knowledge of the proscribed advocacy before he may be convicted. It is, of course, true that quasi-political parties or other groups that may embrace both legal and illegal aims differ from a technical conspiracy, which is defined by its purpose, so that all knowing association with the conspiracy is a proper subject for criminal proscription as far as the First Amendment liberties are concerned. If there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be real danger that legitimate political expression or association would be impaired, but the membership clause, as here construed, does not cut deeper into the freedom of association than is necessary to deal with 'the substantive evils that Congress has a right to prevent.' Schenk v. United States, 249 U.S. 47, 52. The clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy. There must he clear proof that a defendant 'specifically intend[s] to accomplish [the aims of the organization] by resort to violence.' Noto v. United States [367 U.S. at 299]. Thus the member for whom the organization is a vehicle for the advancement of legitimate aims and policies does not fall within the ban of the statute; he lacks the requisite specific intent 'to bring about the overthrow of the government as speedily as circumstances would permit.' Such a person may be foolish, deluded or perhaps merely optimistic, but he is not by this statute made a criminal.'

ACCORDINGLY, the two motions for reconsideration are denied. Our decision of December 27, 1972 is hereby declared final and executory. Makalintal, C.J., Zaldivar, Barredo, Esguerra, Fernandez and Aquino, JJ., concur. Makasiar and Antonio, JJ., did not take part. Munoz Palma, J., took no part.