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Republic of the Philippines

SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TA;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL.,respondents.
RESOLUTION

CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of
presidential decrees which they claimed had not been published as required by law. The
government argued that while publication was necessary as a rule, it was not so when it was
"otherwise provided," as when the decrees themselves declared that they were to become
effective immediately upon their approval. In the decision of this case on April 24, 1985, the
Court affirmed the necessity for the publication of some of these decrees, declaring in the
dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
The petitioners are now before us again, this time to move for reconsideration/clarification of
that decision. 1Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between
laws of general applicability and those which are not; that publication means complete
publication; and that the publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a
request for an advisory opinion and should therefore be dismissed, and, on the merits, that the
clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication
required therein was not always imperative; that publication, when necessary, did not have to be
made in the Official Gazette; and that in any case the subject decision was concurred in only by
three justices and consequently not binding. This elicited a Reply 4 refuting these arguments.
Came next the February Revolution and the Court required the new Solicitor General to file a
Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court.
Responding, he submitted that issuances intended only for the internal administration of a
government agency or for particular persons did not have to be 'Published; that publication
when necessary must be in full and in the Official Gazette; and that, however, the decision
under reconsideration was not binding because it was not supported by eight members of this
Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided. This Code shall take
effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the original
petition and on the instant motion, we have come to the conclusion and so hold, that the clause
"unless it is otherwise provided" refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause does not mean that the
legislature may make the law effective immediately upon approval, or on any other date, without
its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that
the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the
present Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code
which did not become effective after fifteen days from its publication in the Official Gazette but
"one year after such publication." The general rule did not apply because it was "otherwise
provided. "
It is not correct to say that under the disputed clause publication may be dispensed with
altogether. The reason. is that such omission would offend due process insofar as it would deny
the public knowledge of the laws that are supposed to govern the legislature could validly
provide that a law e effective immediately upon its approval notwithstanding the lack of
publication (or after an unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result and they would be so not because of a
failure to comply with but simply because they did not know of its existence, Significantly, this is
not true only of penal laws as is commonly supposed. One can think of many non-penal
measures, like a law on prescription, which must also be communicated to the persons they
may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of
course presupposes that the law has been published if the presumption is to have any legal

justification at all. It is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of public concern," and this
certainly applies to, among others, and indeed especially, the legislative enactments of the
government.
The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely cannot be said that such a
law does not affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member of the body
politic may question in the political forums or, if he is a proper party, even in the courts of justice.
In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as
class legislation or as anultra vires act of the legislature. To be valid, the law must invariably
affect the public interest even if it might be directly applicable only to one individual, or some of
the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the
President in the exercise of legislative powers whenever the same are validly delegated by the
legislature or, at present, directly conferred by the Constitution. administrative rules and
regulations must a also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their subordinates in the performance of
their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a
portion of the national territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even, say, those naming a public place after a
favored individual or exempting him from certain prohibitions or requirements. The circulars
issued by the Monetary Board must be published if they are meant not merely to interpret but to
"fill in the details" of the Central Bank Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social
Welfare on the case studies to be made in petitions for adoption or the rules laid down by the
head of a government agency on the assignments or workload of his personnel or the wearing
of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the
Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform
the public of the contents of the laws. As correctly pointed out by the petitioners, the mere
mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g.,
"with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the
Official Gazette cannot satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General Appropriations Act for FY
1975, a presidential decree undeniably of general applicability and interest, was "published" by
the Marcos administration. 7 The evident purpose was to withhold rather than disclose
information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for
publication in the Official Gazette 8 and that six others felt that publication could be made
elsewhere as long as the people were sufficiently informed. 9 One reserved his vote 10 and
another merely acknowledged the need for due publication without indicating where it should be
made. 11 It is therefore necessary for the present membership of this Court to arrive at a clear
consensus on this matter and to lay down a binding decision supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official
Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of
general circulation could better perform the function of communicating, the laws to the people as
such periodicals are more easily available, have a wider readership, and come out regularly.
The trouble, though, is that this kind of publication is not the one required or authorized by
existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code.
The Solicitor General has not pointed to such a law, and we have no information that it exists. If
it does, it obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify
it if we find it impractical. That is not our function. That function belongs to the legislature. Our
task is merely to interpret and apply the law as conceived and approved by the political
departments of the government in accordance with the prescribed procedure. Consequently, we
have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws
must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after
fifteen days from such publication or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to give
effect to the law pursuant to the said Article 2. There is that possibility, of course, although not
suggested by the parties that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This is a matter, however,
that we do not need to examine at this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an
advisory opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an open
society, with all the acts of the government subject to public scrutiny and available always to
public cognizance. This has to be so if our country is to remain democratic, with sovereignty
residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the
work of their delegates and to ratify or reject it according to their lights, through their freedom of
expression and their right of suffrage. This they cannot do if the acts of the legislature are
concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows
with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be
recognized as binding unless their existence and contents are confirmed by a valid publication
intended to make full disclosure and give proper notice to the people. The furtive law is like a
scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their
approval, or as soon thereafter as possible, be published in full in the Official Gazette, to
become effective only after fifteen days from their publication, or on another date specified by
the legislature, in accordance with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras,
JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170488

December 10, 2012

CMTC INTERNATIONAL MARKETING CORPORATION, Petitioner,


vs.
BHAGIS INTERNATIONAL TRADING CORPORATION, Respondents.
DECISION
PERALTA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Resolutions dated August 19, 20051 and November 15, 20052 of the Former
Special Twelfth Division of the Court of Appeals in CA-G.R. CV No. 84742.
The facts of the case follow.
Petitioner instituted a Complaint for Unfair Competition and/or Copyright Infringement and Claim
for Damages with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction
against respondent before the Regional Trial Court of Makati (trial court).3
On February 14, 2005, the trial court rendered a Decision4 dismissing the complaint filed by
petitioner. The falloof said Decision reads:
WHEREFORE, premises considered, the Complaint for Unfair Competition and/or Copyright
Infringement and Claim for Damages is hereby DISMISSED without pronouncement as to cost.
SO ORDERED.5
After receiving a copy of the trial courts Decision, petitioner seasonably filed a Notice of Appeal
before the Court of Appeals (appellate court) on March 4, 2005.6
Thereafter, the appellate court issued a Notice to File the Appellants Brief on May 20, 2005,
which was received by the law office representing petitioner on May 30, 2005, stating as follows:
Pursuant to Rule 44, Sec. 7 of the 1997 Rules of Civil Procedure you are hereby required to file
with this Court within forty-five (45) days from receipt of this notice, SEVEN (7) legibly
typewritten, mimeographed or printed copies of the Appellants Brief with legible copies of the
assailed decision of the Trial Court and proof of service of two copies upon the appellee/s.7

However, despite said notice, petitioner failed to file its appellants brief timely. Hence, on August
19, 2005, the appellate court issued a Resolution dismissing the appeal filed by petitioner. The
full text of said Resolution reads:
Considering the report of the Judicial Records Division dated 17 August 2005 stating that no
appellants brief has been filed as per docket book entry, the Court RESOLVES to consider the
appeal as having been ABANDONED and consequently DISMISS the same pursuant to Sec.
1(e), Rule 50 of the 1997 Rules of Civil Procedure, as amended.8
Upon receipt of the order of dismissal, petitioner filed its Motion for Reconsideration with Motion
to Admit Appellants Brief,9 which was filed forty-two (42) days late from the date of its expiration
on July 15, 2005.
On November 15, 2005, the appellate court denied petitioners Motion for Reconsideration with
Motion to Admit Appellants Brief. It ruled that one of the grounds by which the Court of Appeals
may, on its own motion or that of the appellee, dismiss the appeal is the failure on the part of the
appellant to serve and file the required number of copies of his brief within the time prescribed
by the Rules of Court, viz.:
For this Court to admit the appellants brief after such wanton disregard of the Rules would put a
strain on the orderly administration of justice.
As held in the case of St. Louis University vs. Cordero, 434 SCRA 575, 587, citing Don Lino
Gutierres & Sons, Inc. v. Court of Appeals, 61 SCRA 87:
"It is necessary to impress upon litigants and their lawyers the necessity of strict compliance
with the periods for performing certain acts incident to the appeal and the transgressions
thereof, as a rule, would not be tolerated; otherwise, those periods could be evaded by
subterfuges and manufactured excuses and would ultimately become inutile.
WHEREFORE, the foregoing premises considered, the Motion for Reconsideration with Motion
to Admit Appellants Brief is perforce DENIED.
SO ORDERED.10
Accordingly, petitioner filed a petition for review on certiorari before this Court questioning the
August 19, 2005 and November 15, 2005 Resolutions of the appellate court. Thus, petitioner
presents the following grounds to support its petition:
A.
THE COURT OF APPEALS GRIEVOUSLY COMMITTED A REVERSIBLE ERROR WHEN IT
SACRIFICED SUBSTANTIVE JUSTICE IN FAVOR OF PROCEDURAL TECHNICALITIES
WITH ITS DISMISSAL OF PETITIONERS APPEAL FOR FAILURE TO FILE THE
APPELLANTS BRIEF ON TIME WITHOUT CONSIDERING AT ALL WHETHER OR NOT
PETITIONERS APPEAL DESERVED FULL CONSIDERATION ON THE MERITS.

B.
IN THE INTEREST OF SUBSTANTIVE JUSTICE, PETITIONERS APPEAL SHOULD BE
REINSTATED CONSIDERING THAT THE ERRORS OF THE TRIAL COURT IN RENDERING
ITS APPEALED DECISION ARE EVIDENT ON THE FACE OF THE SAID DECISION AND
MORE SO AFTER AN EXAMINATION OF THE EVIDENCE ON RECORD.
1. The trial courts ruling that petitioner should have established actual confusion in the
minds of buyers is contrary to jurisprudence.
2. The trial court did not state the facts upon which it based its conclusion that
petitioners trademark is strikingly different and distinct from that of defendants.
3. Respondent labeled its products in a manner confusingly similar to that of petitioners.
4. The trial court erred in finding that respondent did not pass off its products as that of
petitioners.11
Simply, the issue to be resolved is the propriety of the dismissal of petitioners appeal for its
failure to file the appellants brief within the reglementary period.
Petitioner asserts that the appellate court erred in dismissing its appeal, since dismissal of
appeals on purely technical grounds is frowned upon and the rules of procedure ought not to be
applied in a very technical sense, for they are adopted to help secure substantial justice.
For its part, respondent maintains that the appellate court did not err in dismissing petitioners
appeal for its failure to file the required appellants brief within the reglementary period. It
stresses that in the absence of persuasive reason to deviate therefrom, rules of procedure must
be faithfully followed for the prevention of needless delays and for the orderly and expeditious
dispatch of judicial business.
We find merit in the instant petition.
Time and again, this Court has emphasized that procedural rules should be treated with utmost
respect and due regard, since they are designed to facilitate the adjudication of cases to remedy
the worsening problem of delay in the resolution of rival claims and in the administration of
justice. From time to time, however, we have recognized exceptions to the Rules, but only for
the most compelling reasons where stubborn obedience to the Rules would defeat rather than
serve the ends of justice.12
In Obut v. Court of Appeals,13 this Court reiterated that it "cannot look with favor on a course of
action which would place the administration of justice in a straightjacket, for then the result
would be a poor kind of justice if there would be justice at all. Verily, judicial orders are issued to
be obeyed, nonetheless a non-compliance is to be dealt with as the circumstances attending the
case may warrant. What should guide judicial action is the principle that a party-litigant if to be
given the fullest opportunity to establish the merits of his complaint of defense rather than for
him to lose life, liberty, honor or property on technicalities."

The same principle was highlighted in Philippine National Bank and Development Bank of the
Philippines v. Philippine Milling Company, Incorporated, et al.[14 where the Court ruled that
even if an appellant failed to file a motion for extension of time to file his brief on or before the
expiration of the reglementary period, the Court of Appeals does not necessarily lose jurisdiction
to hear and decide the appealed case, and that the Court of Appeals has discretion to dismiss
or not to dismiss appellants appeal, which discretion must be a sound one to be exercised in
accordance with the tenets of justice and fair play having in mind the circumstances obtaining in
each case.
Ergo, where strong considerations of substantive justice are manifest in the petition, the strict
application of the rules of procedure may be relaxed, in the exercise of its equity
jurisdiction.15 Thus, a rigid application of the rules of procedure will not be entertained if it will
obstruct rather than serve the broader interests of justice in the light of the prevailing
circumstances in the case under consideration.
In the instant case, it is apparent that there is a strong desire to file an appellants brief on
petitioners part.
When petitioner filed its motion attaching therewith its appellants brief, there was a clear
intention on the part of petitioner not to abandon his appeal. As a matter of fact, were it not for
its counsels act of inadvertently misplacing the Notice to File Brief in another file, petitioner
could have seasonably filed its appellants brief as its counsel had already prepared the same
even way before the receipt of the Notice to File Brief.
It bears stressing at this point then that the rule, which states that the mistakes of counsel binds
the client, may not be strictly followed where observance of it would result in outright deprivation
of the clients liberty or property, or where the interest of justice so requires. In rendering justice,
procedural infirmities take a backseat against substantive rights of litigants. Corollarily, if the
strict application of the rules would tend to frustrate rather than promote justice, this Court is not
without power to exercise its judicial discretion in relaxing the rules of procedure.16]
Also, it must be stressed that petitioner had no participatory negligence in the dismissal of its
appeal.1wphi1 Hence, the ensuing dismissal of its appeal was completely attributable to the
gross negligence of its counsel. For said reason, the Court is not averse to suspending its own
rules in the pursuit of justice. Where reckless or gross negligence of counsel deprives the client
of due process of law, or when the interests of justice so require, relief is accorded to the client
who suffered by reason of the lawyers gross or palpable mistake or negligence.17
All told, petitioner should be afforded the amplest opportunity for the proper and just
determination of his cause, free from the constraints of technicalities.
Nevertheless, considering that this Court is not a trier of facts, the appropriate action to take is
to remand the case to the appellate court for further proceedings, for it to thoroughly examine
the factual and legal issues that still need to be threshed out.

WHEREFORE, premises considered, the instant petition is hereby GRANTED, insofar as this
case is REMANDEDto the Court of Appeals for further proceedings, subject to the payment of
the corresponding docket fees within fifteen (15) days from notice of this Decision.
Let the records and the CA rollo of this case be transmitted accordingly.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 192108

November 21, 2012

SPOUSES SOCRATES SY AND CELY SY, Petitioner,


vs.
ANDOK'S LITSON CORPORATION, Respondent.
DECISION
PEREZ, J.:
Assailed in this Petition for Review on Certiorari is the Decision1 of the Court of Appeals dated
20 January 2010 in CA-G.R. CV No. 91942, as well as the Resolution2 dated 29 April 2010,
denying the motion for reconsideration.
This is a case for rescission of contract filed by the lessee, now respondent, against the lessors,
now the petitioners.
Petitioner Cely Sy (Sy) is the registered owner of a 316 square-meter lot located at 1940 Felix
Huertas Street, Sta. Cruz, Manila. Respondent Andoks Litson Corporation (Andoks) is engaged
in the business of selling grilled chicken and pork with outlets all over the Philippines. On 5 July
2005, Sy and Andoks entered into a 5-year lease contract covering the parcel of land owned by
Sy. Monthly rental was fixed at P60,000.00, exclusive of taxes, for the first 2 years and
P66,000.00 for the third, fourth and fifth year with 10% escalation every year beginning on the
fourth year.3
Per contract, the lessee shall, upon signing the contract, pay four (4) months of advance deposit
amounting to P240,000.00 and a security deposit equivalent to four (4) months of rental in the
amount of P240,000.00. Accordingly, Andoks issued a check to Sy for P480,000.00.
Andoks alleged that while in the process of applying for electrical connection on the
improvements to be constructed on Sys land, it was discovered that Sy has an unpaid Manila
Electric Company (MERALCO) bill amounting to P400,000.00. Andoks presented a systemgenerated statement from MERALCO.4 Andoks further complained that construction for the
improvement it intended for the leased premises could not proceed because another tenant,
Mediapool, Inc. incurred delay in the construction of a billboard structure also within the leased
premises. In its letter dated 25 August 2005, Andoks first informed Sy about the delay in the
construction of the billboard structure on a portion of its leased property. Three more letters of
the same tenor were sent to Sy but the demands fell on deaf ears. Consequently, Andoks
suffered damages in the total amount of P627,000.00 which comprises the advance rental and
deposit, cost of money, mobilization cost for the construction of improvement over leased

premises, and unrealized income. The complaint for rescission was filed on 13 February 2008,
three years after continued inaction on the request to have the billboard construction expedited.
In her Answer, Sy stated that she has faithfully complied with all the terms and conditions of the
lease contract and denied incurring an outstanding electricity bill.5
On 14 April 2008, Andoks filed a motion to set the case for pre-trial.
The Regional Trial Court of Manila (RTC) sent a Notice of Pre-trial Conference to the parties on
28 April 2008 informing them that a pre-trial conference is set on 26 May 2008.
On 23 May 2008, an Urgent Motion to Reset Pre-Trial Conference was filed by Sys counsel on
the allegation that on the pre-trial date, he has to attend a hearing on another branch of the RTC
in Manila.
During the pre-trial conference, Sy and her counsel failed to appear. Sys urgent motion was
denied, and the RTC allowed Andoks to present its evidence ex-parte.
No motion for reconsideration was filed on the trial courts order allowing ex-parte presentation
of evidence. Thus, on the 2 June 2008 hearing, Andoks presented ex-parte the testimony of its
General Manager, Teodoro Calaunan, detailing the breach of contract committed by Sy.
On 24 July 2008, the trial court rendered a decision favoring Andoks, to wit:
WHEREFORE, consistent with Section 5, Rule 18 of the 1997 Rules of Civil Procedure,
judgment is hereby rendered in favor of the plaintiff, ordering the defendants to pay to the
plaintiff (1) P480,000.00 with legal rate of interest from March 11, 2006, (2) P1,350.00 for the
comprehensive insurance on the leased portion of the realty, and (3) P4,873.00 as contractors
tax.
For lack of merit, defendants counterclaim is hereby dismissed.6
On appeal, Sy decried deprivation of her right to present evidence resulting in a default
judgment against her. Sy denied that there was a breach on the lease contract.
On 20 January 2010, the Court of Appeals dismissed the appeal and affirmed the ruling of the
RTC.
The appellate court held that the trial court correctly allowed the presentation of evidence exparte as there was no valid reason for the urgent motion for postponement of the pre-trial filed
by Sy. The appellate court found that Sy repeatedly failed to comply with her obligation under
the lease contract despite repeated demands. The appellate court awarded damages for breach
of contract.
After the denial of Sys motion for reconsideration, she filed the instant petition raising the
following grounds:

-AWITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS IN AFFIRMING


THE TRIAL COURTS JUDGMENT FAILED TO NOTICE THAT THE DEFAULT
JUDGMENT STRAYED FROM JUDICIAL PRECEDENT AND POLICY, AND
AMOUNTED TO AN INFRINGEMENT OF THE RIGHT TO DUE PROCESS OF THE
SPOUSES SY.
-BWITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS IN AFFIRMING
THE TRIAL COURTS DEFAULT JUDGMENT FAILED TO APPRECIATE THAT THE
RESPONDENT ITSELF CONTRACTUALLY ASSUMED THE RISK OF DELAY, AND
THUS ANY DELAY COULD NOT BE A GROUND FOR THE RESOLUTION OR
ANNULMENT OF THE CONTRACT OF LEASE.
-CWITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS ALLOWED A
DEPARTURE FROM JUDICIAL PRECEDENT WHEN IT SUSTAINED THE TRIAL
COURTS IMPOSITION OF LEGAL INTEREST ON THE MONETARY AWARD IN
RESPONDENTS FAVOR.7
The affirmance by the Court of Appeals of the judgment of the trial court is correct.
Section 4, Rule 18 of the Rules of Court requires the parties and their counsel to appear at pretrial, thus:
Section 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear
at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear in his behalf fully authorized in writing to enter into an
amicable settlement, to submit to alternative modes of dispute resolution, and to enter into
stipulations or admissions of facts and of documents.
Section 5 of the same rule states the consequences of failure to appear during pre-trial, thus:
Section 5. Effect of failure to appear. The failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal
shall be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to present his evidence ex-parte and the court to
render judgment on the basis thereof.
What constitutes a valid ground to excuse litigants and their counsels from appearing at the pretrial under Section 4, Rule 18 of the Rules of Court is subject to the sound discretion of a
judge.8 Such discretion was shown by the trial court, which was correct in putting into effect the
consequence of petitioners non-appearance at the pre-trial. While Sy filed an Urgent Motion to
Reset Pre-trial, she cannot assume that her motion would be automatically granted. As found by

the Court of Appeals, the denial of petitioners motion for postponement is dictated by the
motion itself:
A perusal of the Urgent Motion to Reset Pre-Trial Conference discloses that other than the
allegation that counsel will attend a hearing in another branch of the same court in Manila, yet, it
failed to substantiate its claim. It did not state the case number nor attach the Calendar of
Hearing or such other pertinent proof to appraise the court that indeed counsel was
predisposed.9
We cannot allow petitioners to argue that their right to due process has been infringed.
In The Philippine American Life & General Insurance Company v. Enario,10 we reiterated that the
essence of due process is to be found in the reasonable opportunity to be heard and to submit
any evidence one may have in support of ones defense. Where the opportunity to be heard,
either through verbal arguments or pleadings, is accorded, and the party can present its side or
defend its interest in due course, there is no denial of procedural due process.
We next deal with the central issue of rescission.
Article 1191 of the Civil Code provides that the power to rescind obligations is implied in
reciprocal ones, in case one of the obligors should not comply with what is incumbent upon him.
A lease contract is a reciprocal contract. By signing the lease agreement, the lessor grants
possession over his/her property to the lessee for a period of time in exchange for rental
payment.
Indeed, rescission is statutorily recognized in a contract of lease. Article 1659 of the Civil Code
provides:
Art. 1659. If the lessor or the lessee should not comply with the obligations set forth in articles
1654 and 1657, the aggrieved party may ask for the rescission of the contract and
indemnification for damages, or only the latter, allowing the contract to remain in force.
Article 1659 outlines the remedies for non-compliance with the reciprocal obligations in a lease
contract, which obligations are cited in Articles 1654 and 1657:
Article 1654. The lessor is obliged:
(1) To deliver the thing which is the object of the contract in such a conditions as to
render it fit for the use intended;
(2) To make on the same during the lease all the necessary repairs in order to keep it
suitable for the use to which it has been devoted, unless there is a stipulation to the
contrary;
(3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the
entire duration of the contract.

Article 1657. The lessee is obliged:


(1) To pay the price of the lease according to the terms stipulated;
(2) To use the thing leased as a diligent father of a family, devoting it to the use
stipulated; and in the absence of stipulation, to that which may be inferred from the
nature of the thing leased, according to the custom of the place;
(3) To pay the expenses for the deed of lease. (Boldfacing supplied).
The aggrieved party is given the option to the aggrieved party to ask for: (1) the rescission of the
contract; (2) rescission and indemnification for damages; or (3) only indemnification for
damages, allowing the contract to remain in force.11
While Andoks had complied with all its obligations as a lessee, the lessor failed to render the
premises fit for the use intended and to maintain the lessee in the peaceful and adequate
enjoyment of the lease.
The case of CMS Investments and Management Corporation v. Intermediate Appellate
Court12 quoted Manresas comment on the lessors obligation to maintain the lessee in the
peaceful and adequate enjoyment of the lease for the entire duration of the contract, in this
wise:
The lessor must see that the enjoyment is not interrupted or disturbed, either by others' acts x x
x or by his own. By his own acts, because, being the person principally obligated by the
contract, he would openly violate it if, in going back on his agreement, he should attempt to
render ineffective in practice the right in the thing he had granted to the lessee; and by others'
acts, because he must guarantee the right he created, for he is obliged to give warranty in the
manner we have set forth in our commentary on article 1553, and, in this sense, it is incumbent
upon him to protect the lessee in the latters peaceful enjoyment.13
Andoks paid a total of P480,000.00 as advance deposit for four (4) months and security deposit
equivalent to four (4) months. However, the construction of its outlet store was hindered by two
incidents the unpaid MERALCO bills and the unfinished construction of a billboard structure
directly above the leased property.
Sy argues that per contract, Andoks had assumed the risk of delay by allowing MediaPool, Inc.
to construct a billboard structure on a portion of the leased premises. We reproduce the
pertinent provision for brevity:
10. That the LESSEE shall allow persons who will construct, inspect, maintain and repair all
billboard structures to be set up and constructed on the portion of the parcel of land excluded
from this contract, only upon approval of written request to LESSEE AND LESSOR from the
billboard LESSEE to avoid disruption of business operations of Andoks Litson Corporation and
its affiliates.14

True, Andoks agreed to allow MediaPool, Inc. to construct a billboard structure but it was
conditioned on Andoks and the lessors approval to avoid disruption of its business operation.
Sy is thus cognizant of the fact that the said billboard structure construction might disrupt, as it
already did, the intended construction of respondents outlet. It is thereby understood that the
construction of a billboard should be done within a period of time that is reasonable and
sufficient so as not to disrupt the business operations of respondent. In this case, Andoks had
agreed to several extensions for MediaPool, Inc. to finish its billboard construction. It had sent a
total of four (4) letters in a span of 8 months, all of which were merely ignored. Indeed, the
indifference demonstrated by Sy leaves no doubt that she has reneged on her obligation.
Sys disregard of Andoks repeated demands for the billboard lessee to finish the construction is
a violation of her obligation to maintain the lessee in peaceful and adequate enjoyment of the
lease. The delay in the construction had obviously caused disruption in respondents business
as it could not immediately commence its business operations despite prompt payment of
rent.1vvph!1
The attendant circumstances show substantial breach. The delay in the construction prevented
Andoks from using the leased premises for its business outlet. On top of the failure of Sy to
address the delay in the billboard construction, she also failed to resolve or explain the unpaid
electricity bills. Sy resorted to a blanket denial without however producing any proof that the
said bill had been settled. These incidents refer to the fundamentals of the contract for the lease
of Sys premises. She failed to comply with the obligations that have arisen upon Andoks
payment of the amount equivalent to eight months of the monthly rentals.
Anent the imposition of legal interest, the Court of Appeals is correct in stating that the award of
damages was warranted under the facts of the case and the imposition of legal interest was
necessary consequence thereof. We find applicable the pertinent guidelines provided in Eastern
Shipping Lines, Inc. v. Court of Appeals,15 thus:
2. When an obligation, not constituting a loan or forbearance of money, is breached, an
interest on the amount of damages awarded may be imposed at the discretion of the
court at the rate of 6% per annum. No interest, however, shall be adjudged on
unliquidated claims or damages except when or until the demand can be established
with reasonable certainty. Accordingly, where the demand is established with reasonable
certainty, the interest shall begin to run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably
established at the time the demand is made, the interest shall begin to run only from the
date the judgment of the court is made (at which time the quantification of damages may
be deemed to have been reasonably ascertained). The actual base for the computation
of legal interest shall, in any case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and
executory, the rate of legal interest, whatever the case falls under paragraph 1 or
paragraph 2, above, shall be 12% per annum from such finality until its satisfaction, this
interim period being deemed to be by then an equivalent to a forbearance of credit.16

Accordingly, legal interest at the rate of 6% per annum on the amounts awarded starts to run
from 24 July 2008, when the trial court rendered judgment. From the time this judgment
becomes final and executory, the interest rate shall be 12% per annum on the judgment amount
and the interest earned up to that date, until the judgment is wholly satisfied.
WHEREFORE, the petition is DENIED. The 20 January 2010 Decision of the Court of Appeals
in CA-G.R. CV No. 91942, affirming the 24 July 2008 Decision of the RTC, Branch 17, Manila, is
hereby AFFIRMED.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-24153 February 14, 1983
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA
RAMIREZ and LOURDES LOMIBAO, as component members of the STA. CRUZ
BARBERSHOP ASSOCIATION, in their own behalf and in representation of the other
owners of barbershops in the City of Manila, petitioners-appellants,
vs.
HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON. HERMINIO A. ASTORGA, ViceMayor and Presiding Officer of the Municipal Board in relation to Republic Act 4065, THE
MUNICIPAL BOARD OF THE CITY OF MANILA and EDUARDO QUINTOS SR., Chief of
Police of the City of Manila, respondents-appellees.
Leonardo L. Arguelles for respondent-appellant.

FERNANDO, C.J.:
This is an appeal from an order of the lower court dismissing a suit for declaratory relief
challenging the constitutionality based on Ordinance No. 4964 of the City of Manila, the
contention being that it amounts to a deprivation of property of petitioners-appellants of their
means of livelihood without due process of law. The assailed ordinance is worded thus: "It shall
be prohibited for any operator of any barber shop to conduct the business of massaging
customers or other persons in any adjacent room or rooms of said barber shop, or in any room
or rooms within the same building where the barber shop is located as long as the operator of
the barber shop and the room where massaging is conducted is the same person." 1 As noted in
the appealed order, petitioners-appellants admitted that criminal cases for the violation of this
ordinance had been previously filed and decided. The lower court, therefore, held that a petition
for declaratory relief did not lie, its availability being dependent on there being as yet no case
involving such issue having been filed. 2
Even if such were not the case, the attack against the validity cannot succeed. As pointed out in
the brief of respondents-appellees, it is a police power measure. The objectives behind its
enactment are: "(1) To be able to impose payment of the license fee for engaging in the
business of massage clinic under Ordinance No. 3659 as amended by Ordinance 4767, an
entirely different measure than the ordinance regulating the business of barbershops and, (2) in
order to forestall possible immorality which might grow out of the construction of separate rooms
for massage of customers." 3 This Court has been most liberal in sustaining ordinances based
on the general welfare clause. As far back as U.S. v. Salaveria, 4 a 1918 decision, this Court
through Justice Malcolm made clear the significance and scope of such a clause, which
"delegates in statutory form the police power to a municipality. As above stated, this clause has

been given wide application by municipal authorities and has in its relation to the particular
circumstances of the case been liberally construed by the courts. Such, it is well to really is the
progressive view of Philippine jurisprudence." 5 As it was then, so it has continued to be. 6 There
is no showing, therefore, of the unconstitutionality of such ordinance.
WHEREFORE, the appealed order of the lower court is affirmed. No costs.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179031

February 24, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff Appellee,


vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
RESOLUTION
DEL CASTILLO, J.:
On November 14, 2012, this Court rendered its Decision1 in this case finding accused-appellant
Benjamin Soria y Gomez guilty beyond reasonable doubt of rape. The dispositive portion of the
Decision reads:
WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-GR. CR-H.C.
No. 01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is
found guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to
suffer the penalty of twelve (12) years of prision mayor, as minimum, to twenty (20) years of
reclusion temporal, as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00
as civil indemnity, P30,000.00 as moral damages, and P30,000.00 as exemplary damages.
"AAA" is entitled to an interest on all damages awarded at the legal rate of 6% per annum :from
the date of finality of this judgment until fully paid.
SO ORDERED.2
The said Decision supposedly became final and executory on December 20,
2012.3 Subsequently, however, the Court received a letter from the Bureau of Corrections
informing us of the death of accused-appellant on August 16, 2012. In compliance with our
directive, the Director of the Bureau of Corrections submitted on November 11, 2013, a certified
true copy of the death certificate4 of accused-appellant.
Clearly, accused-appellants demise on August 16, 2012 transpired before the promulgation of
this Courts Decision on November 14, 2012 or before its finality on December 20, 2012.
Therefore, when accused-appellant died, his appeal before this Court was still pending
resolution.
Article 89 of the Revised Penal Code pertinently provides:
ART. 89. How criminal liability is totally extinguished. - Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before final
judgment;
xxxx
In People v. Amistoso,5 this Court encountered a similar situation wherein the accused-appellant
died before his appeal could be resolved. The Court explained the implications of the accusedappellants demise as follows:
Given the foregoing, it is clear that the death of the accused pending appeal of his conviction
extinguishes his criminal liability, as well as his civil liability ex delicto. Since the criminal action
is extinguished inasmuch as there is no longer a defendant to stand as the accused, the civil
action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal case.
Undeniably, Amistosos death on December 11, 2012 preceded the promulgation by the Court of
its Decision on January 9, 2013. When Amistoso died, his appeal before the Court was still
pending and unresolved.1wphi1 The Court ruled upon Amistosos appeal only because it was
not immediately informed of his death.
Amistosos death on December 11, 2012 renders the Courts Decision dated January 9, 2013,
even though affirming Amistosos conviction, irrelevant and ineffectual. Moreover, said Decision
has not yet become final, and the Court still has the jurisdiction to set it aside.
The Court had no course of action but to set aside its Decision and dismiss the criminal case
against Amistoso by reason of his death.
Likewise, the November 14, 2012 Decision of this Court finding accused-appellant guilty beyond
reasonable doubt of the crime of rape had become irrelevant and ineffectual by reason of his
death on August 16, 2012. Consequently, the same must be set aside and the case against
accused-appellant must consequently be dismissed.
ACCORDINGLY, the November 14, 2012 Decision of this Court is SET ASIDE and Criminal
Case No. Q-01-98692 before the Regional Trial Court of Quezon City, Branch 94, is
DISMISSED on account of accused-appellant's demise.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 199082

July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner,


vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her
capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, JR., in his
capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES,
JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N.
TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND
AUGUSTO C. LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A.
ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D.
VILLARET, in their capacity as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION COMMITTEE ON THE 2004 AND
2007 ELECTION FRAUD, Respondents.
x-----------------------x
G.R. No. 199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJCOMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M.
PIMENTEL III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
RESOLUTION
PERALTA, J.:
For resolution are the separate motions for reconsideration filed by movants Gloria Macapagal
Arroyo (GMA)1 in G.R. No. 199118 and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No.

199082 praying that the Court take a second look at our September 18, 2012
Decision3 dismissing their petitions and supplemental petitions against respondents
Commission on Elections (Comelec), the Department of Justice (DOJ), Senator Aquilino M.
Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary Investigation Committee (Joint
Committee) and DOJ-Comelec Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and procedural antecedents as
found by the Court in the assailed decision, to wit:
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team (referred to as Joint Panel) on the 2004
and 2007 National Elections electoral fraud and manipulation cases. The Joint Committee was
mandated to conduct the necessary preliminary investigation on the basis of the evidence
gathered and the charges recommended by the Fact-Finding Team. The Fact-Finding Team, on
the other hand, was created for the purpose of gathering real, documentary, and testimonial
evidence which can be utilized in the preliminary investigation to be conducted by the Joint
Committee. Pursuant to Section 74 of the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.
In its Initial Report5 dated October 20, 2011, the Fact-Finding Team concluded that manipulation
of the results in the May 14, 2007 senatorial elections in the provinces of North and South
Cotabato, and Maguindanao was indeed perpetrated.6 The Fact-Finding Team recommended,
among others, that petitioner Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate the election results in North and
South Cotabato; that GMA and Abalos be subjected to another preliminary investigation for
manipulating the election results in Maguindanao;7 and, that Mike Arroyo be subjected to further
investigation.8 The case was docketed as DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Pimentel filed a ComplaintAffidavit9 for Electoral
Sabotage against petitioners and twelve others, and several John Does and Jane Does. The
case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJComelec Case Nos. 001-2011 and 002-2011.10 On November 3, 2011, petitioners, through
counsel, appeared before the Joint Committee11 and respondents therein were ordered to
submit their Counter-Affidavits by November 14, 2011.12
Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.13 The petitions were eventually consolidated.
On November 14, 2011, Mike Arroyo filed a Motion to Defer Proceedings14 before the Joint
Committee, in view of the pendency of his petition before the Court. On the same day, GMA filed
before the Joint Committee an Omnibus Motion Ad Cautelam15 to require Senator Pimentel to
furnish her with documents referred to in his complaint-affidavit and for the production of
election documents as basis for the charge of electoral sabotage. GMA prayed that she be
allowed to file her counter-affidavit within ten (10) days from receipt of the requested

documents.16 Petitioner Abalos, for his part, filed a Motion to Suspend Proceedings (Ex
Abundante Ad Cautelam),17 in view of the pendency of his petition brought before the Court.
In an Order18 dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA, subsequently, filed a motion for reconsideration.19
On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later
indorsed to the Comelec.20 On November 18, 2011, the Comelec en banc issued a
Resolution21 approving and adopting the Joint Resolution subject to modifications. The Comelec
resolved, among others, that an information for electoral sabotage be filed against GMA and
Abalos, while the charges against Mike Arroyo be dismissed for insufficiency of evidence.
On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42(b)(3) of Republic Act (RA)
No. 9369, amending Section 27 (b) of RA 6646, docketed as Criminal Case No. RPSY-1104432-CR.22 The case was raffled to Branch 112 and the corresponding Warrant of Arrest was
issued which was served on GMA on the same day.23
On November 18, 2011, GMA filed with the RTC an Urgent Omnibus Motion Ad Cautelam24 with
leave to allow the Joint Committee to resolve the motion for reconsideration filed by GMA, to
defer issuance of a warrant of arrest and a hold departure order, and to proceed to judicial
determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam25 praying that its Resolution be vacated for being null and void. The RTC,
nonetheless, issued a Warrant for her arrest which was duly served. GMA was later arraigned
and she entered a plea of "not guilty." She was, for some time, on hospital arrest but was able to
obtain temporary liberty when her motion for bail was granted. At present, she is again on
hospital arrest by virtue of a warrant issued in another criminal case.
On September 18, 2012, the Court rendered the assailed Decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED.
Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15,
2011, and the Fact- Finding Teams Initial Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged
Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of
publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec
Rules of Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal
cases for electoral sabotage against petitioners GMA and Abalos are pending, proceed with
dispatch.

SO ORDERED.26
Hence, these motions for reconsideration.
Issues
Mike Arroyo reiterates his arguments on the independence of the Comelec as basis in nullifying
the subject joint DOJ-Comelec resolutions. Echoing Justice Arturo Brion in his Dissenting and
Concurring Opinion,27 Mike Arroyo insists that the creation of the Joint Panel undermines the
decisional independence of the Comelec.28
Mike Arroyo also maintains that the DOJ should conduct preliminary investigation only when
deputized by the Comelec but not exercise concurrent jurisdiction.29 Finally, as has been
repeatedly pointed out in his earlier pleadings before the Court, Mike Arroyo claims that the
proceedings involving the electoral sabotage case were rushed because of pressures from the
executive branch of the government.30
For her part, GMA claims that in availing of the procedural remedies available, she merely
exercised her earnest efforts to defend herself and should not have been deemed by the Court
as acts which purportedly tend to demonstrate that she either waived or forfeited her right to
submit her counter-affidavit and countervailing evidence.31 Citing several cases decided by the
Court, she likewise faults the Court in not upholding her right to ask for additional time within
which to submit her counter-affidavit and countervailing evidence.32 GMA highlights that the
subject Comelec Resolution creating the Joint Panel is different from the previous Comelec
resolutions requesting the DOJ Secretary to assign prosecutors to assist the Comelec, as the
latter emphasize the role of the DOJ as deputized agency in the conduct of preliminary
investigation. She maintains that it is the Comelec and not the Joint Committee that has the
primary, if not exclusive, authority to conduct preliminary investigation of election cases.33
In their Consolidated Comment,34 respondents defend the creation of the Joint Committee and
argue that it does not undermine the independence of the Comelec as a constitutional body
because it is still the Comelec that ultimately determines probable cause.35 As to the conduct of
the preliminary investigation, respondents maintain that no rights were violated as GMA was
afforded the opportunity to defend herself, submit her counter-affidavit and other countervailing
evidence.36 They, thus, consider GMAs claim of availing of the remedial measures as "delaying
tactics" employed to thwart the investigation of charges against her by the Joint Committee.37
The Courts Ruling
Clearly from the above discussion, movants raise issues that have been thoroughly explained
by the Court in the assailed decision. The issues were all addressed and the explanation was
exhaustive, thus, we find no reason to disturb the Courts conclusions.
At any rate, if only to address the motions of the movants herein and to put an end to the
questions attached to the creation of the Joint Panel and, consequently, to the performance of
their assigned tasks, we hereby reiterate our findings and conclusions made in the assailed
decision.

This is not the first time that the Court is confronted with the issue of whether the Comelec has
the exclusive power to investigate and prosecute cases of violations of election laws. In
Barangay Association for National Advancement and Transparency (BANAT) Party-List v.
Commission on Elections,38 the constitutionality of Section 4339 of RA 936940 had already been
raised by petitioners therein and addressed by the Court. While recognizing the Comelecs
exclusive power to investigate and prosecute cases under Batas Pambansa Bilang 881 or the
Omnibus Election Code, the Court pointed out that the framers of the 1987 Constitution did not
have such intention. This exclusivity is thus a legislative enactment that can very well be
amended by Section 43 of RA 9369. Therefore, under the present law, the Comelec and other
prosecuting arms of the government, such as the DOJ, now exercise concurrent jurisdiction in
the investigation and prosecution of election offenses.
Indeed, as aptly pointed out by GMA, there is a discrepancy between Comelec Resolution No.
346741 dated January 12, 2001 and Joint Order No. 001-2011, dated August 15, 2011, creating
and constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National
Elections electoral fraud and manipulation cases. However, GMA seemed to miss the date when
these two resolutions were promulgated by the Comelec. It is noteworthy that Comelec
Resolution No. 3467 was issued when Section 265 of the Omnibus Election Code was still
effective, while Joint Order No. 001-2011 as well as Comelec Resolution Nos. 873342 and
905743 mentioned in the assailed decision but missed out by GMA in her motion, were issued
during the effectivity of Section 43 of RA 9369, giving the Comelec and other prosecuting arms
of the government the concurrent jurisdiction to investigate and prosecute election offenses.
This amendment paved the way for the discrepancy. In Comelec Resolution No. 3467, the
Comelec maintained the continuing deputation of prosecutors and the Comelec Law
Department was tasked to supervise the investigatory and prosecutory functions of the task
force pursuant to the mandate of the Omnibus Election Code. However, with the amendment,
the Comelec likewise changed the tenor of the later resolutions to reflect the new mandate of
the Comelec and other prosecuting arms of the government now exercising concurrent
jurisdiction. Thus, the Comelec Law Department and the Office of the Chief State Prosecutor of
the DOJ were tasked to jointly supervise the investigatory and prosecutory functions of the
Comelec-DOJ Task Force. Considering, therefore, that the later resolutions, including Joint
Order No. 001-2011, were issued pursuant to Section 43 of RA 9369 amending Section 265 of
BP 881 which was declared "constitutional" in Banat, there is no reason for us to declare
otherwise. To maintain the previous role of other prosecuting arms of the government as mere
deputies despite the amendment would mean challenging Section 43 of RA 9369 anew which
has already been settled in Banat.
To be sure, the creation of a Joint Committee is not repugnant to the concept of "concurrent
jurisdiction" authorized by the amendatory law. As we explained in our September 18, 2012
Decision:
x x x The doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same
subject matter. Contrary to the contention of the petitioners, there is no prohibition on
simultaneous exercise of power between two coordinate bodies. What is prohibited is the
situation where one files a complaint against a respondent initially with one office (such as the
Comelec) for preliminary investigation which was immediately acted upon by said office and the
re-filing of substantially the same complaint with another office (such as the DOJ). The

subsequent assumption of jurisdiction by the second office over the cases filed will not be
allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others.
xxxx
None of these problems would likely arise in the present case. The Comelec and the DOJ
themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the
preliminary investigation was conducted on the basis of two complaints the initial report of the
Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the
Joint Committee. Consequently, the complaints were filed with and the preliminary investigation
was conducted by only one investigative body. Thus, we find no reason to disallow the exercise
of concurrent jurisdiction jointly by those given such authority. This is especially true in this case
given the magnitude of the crimes allegedly committed by petitioners. The joint preliminary
investigation also serves to maximize the resources and manpower of both the Comelec and
the DOJ for the prompt disposition of the cases.44
Notwithstanding the grant of concurrent jurisdiction, the Comelec and the DOJ nevertheless
included a provision in the assailed Joint Order whereby the resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved by the Comelec in
accordance with the Comelec Rules of Procedure.45 With more reason, therefore, that we
cannot consider the creation of the Joint Committee as an abdication of the Comelecs
independence enshrined in the 1987 Constitution.
Finally, we focus on the validity of the preliminary investigation conducted by the Joint
Committee.
The procedure in conducting the preliminary investigation is governed by Rule 112 of the
Revised Rules on Criminal Procedure and Rule 34 of the Comelec Rules of Procedure. Under
both Rules,46 the respondent shall submit his counter-affidavit and that of his witnesses and
other supporting documents relied upon for his defense, within ten (10) days from receipt of the
subpoena, with the complaint and supporting affidavits and documents.47Also in both Rules,
respondent is given the right to examine evidence, but such right of examination is limited only
to the documents or evidence submitted by complainants which she may not have been
furnished and to copy them at her expense.48
As to the alleged denial of GMAs right to examine documents, we maintain that no right was
violated in view of the limitation of such right as set forth above. We reiterate our explanation in
the assailed decision, to wit:
While it is true that Senator Pimentel referred to certain election documents which served as
bases in the allegations of significant findings specific to the protested municipalities involved,
there were no annexes or attachments to the complaint filed. As stated in the Joint Committees
Order dated November 15, 2011 denying GMAs Omnibus Motion Ad Cautelam, Senator
Pimentel was ordered to furnish petitioners with all the supporting evidence. However, Senator
Pimentel manifested that he was adopting all the affidavits attached to the Fact-Finding Teams
Initial Report. Therefore, when GMA was furnished with the documents attached to the Initial

Report, she was already granted the right to examine as guaranteed by the Comelec Rules of
Procedure and the Rules on Criminal Procedure. Those were the only documents submitted by
the complainants to the Committee. If there are other documents that were referred to in
Senator Pimentels complaint but were not submitted to the Joint Committee, the latter
considered those documents unnecessary at that point (without foreclosing the relevance of
other evidence that may later be presented during the trial) as the evidence submitted before it
were considered adequate to find probable cause against her. x x x491wphi1
Neither was GMAs right violated when her motion for extension of time within which to submit
her counter-affidavit and countervailing evidence was consequently denied. The Rules use the
term "shall" in requiring the respondent to submit counter-affidavit and other countervailing
evidence within ten (10) days from receipt of the subpoena. It is settled that the use of the word
"shall" which is a word of command, underscores the mandatory character of the rule.50 As in
any other rule, though, liberality in the application may be allowed provided that the party is able
to present a compelling justification for the non-observance of the mandatory rules. In the 2008
Revised Manual for Prosecutors, investigating prosecutors allow or grant motions or requests
for extension of time to submit counter-affidavits when the interest of justice demands that
respondent be given reasonable time or sufficient opportunity to engage the services of counsel;
examine voluminous records submitted in support of the complaint or undertake research on
novel, complicated or technical questions or issues of law and facts of the case.51
In this case, GMA claimed that she could not submit her counteraffidavit within the prescribed
period because she needed to examine documents mentioned in Senator Pimentels complaintaffidavit. It appeared, however, that said documents were not submitted to the Joint Committee
and the only supporting documents available were those attached to the Initial Report of the
Fact-Finding Team. Admittedly, GMA was furnished those documents. Thus, at the time she
asked for the extension of time within which to file her counter-affidavit, she very well knew that
the documents she was asking were not in the record of the case. Obviously, she was not
furnished those documents because they were not submitted to the Joint Committee. Logically,
she has no right to examine said documents. We cannot, therefore, fault the Joint Committee in
consequently denying her motion for extension to file counter-affidavit as there was no
compelling justification for the non-observance of the period she was earlier required to follow.
And as we held in the assailed decision:
There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the
information in court.
However, speed in the conduct of proceedings by a judicial or quasijudicial officer cannot per se
be instantly attributed to an injudicious performance of functions. The orderly administration of
justice remains the paramount consideration with particular regard to the peculiar circumstances
of each case. To be sure, petitioners were given the opportunity to present countervailing
evidence. Instead of complying with the Joint Committees directive, several motions were filed
but were denied by the Joint Committee. Consequently, petitioners right to submit counteraffidavit and countervailing evidence was forfeited. Taking into account the constitutional right to
speedy disposition of cases and following the procedures set forth in the Rules on Criminal

Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its
conclusion and referred the case to the Comelec. The latter, in turn, performed its task and filed
the information in court. Indeed, petitioners were given the opportunity to be heard. They even
actively participated in the proceedings and in fact filed several motions before the Joint
Committee. Consistent with the constitutional mandate of speedy disposition of cases,
unnecessary delays should be avoided.52
Finally, in our assailed decision, we already took judicial notice that not only did GMA enter a
plea of "not guilty," she also filed a Motion for Bail and after due hearing, it was granted.
Apparently, she benefited from the RTC Order giving her temporary liberty. In filing the motion
before the RTC and actively participating therein, she has chosen to seek judicial remedy before
the RTC where the electoral sabotage case is pending instead of the executive remedy of going
back to the Joint Committee for the submission of her counter-affidavit and countervailing
evidence. Besides, as thoroughly discussed in the assailed decision, the irregularity or even the
absence of preliminary investigation does not impair the validity of the information filed against
her.
WHEREFORE, premises considered, the Motions for Reconsideration are DENIED for lack of
merit.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 171118

September 10, 2012

PARK HOTEL, J's PLAYHOUSE BURGOS CORP., INC., and/or GREGG HARBUTT, General
Manager, ATTY. ROBERTO ENRIQUEZ, President, and BILL PERCY, Petitioners,
vs.
MANOLO SORIANO, LESTER GONZALES, and YOLANDA BADILLA, Respondents.
DECISION
PERALTA, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to set aside the Decision1 and the Resolution2 of the Court of Appeals (CA) in CA-G.R.
SP No. 67766.
The antecedents are as follows:
Petitioner Park Hotel3 is a corporation engaged in the hotel business. Petitioners Gregg
Harbutt4 (Harbutt) and Bill Percy5 (Percy) are the General Manager and owner, respectively, of
Park Hotel. Percy, Harbutt and Atty. Roberto Enriquez are also the officers and stockholders of
Burgos Corporation (Burgos),6 a sister company of Park Hotel.
Respondent Manolo Soriano (Soriano) was hired by Park Hotel in July 1990 as Maintenance
Electrician, and then transferred to Burgos in 1992. Respondent Lester Gonzales (Gonzales)
was employed by Burgos as Doorman, and later promoted as Supervisor. Respondent Yolanda
Badilla (Badilla) was a bartender of J's Playhouse operated by Burgos.
In October of 1997, Soriano, Gonzales and Badilla7 were dismissed from work for allegedly
stealing company properties. As a result, respondents filed complaints for illegal dismissal,
unfair labor practice, and payment of moral and exemplary damages and attorney's fees, before
the Labor Arbiter (LA). In their complaints, respondents alleged that the real reason for their
dismissal was that they were organizing a union for the company's employees.
On the other hand, petitioners alleged that aside from the charge of theft, Soriano and Gonzales
have violated various company rules and regulations8 contained in several memoranda issued
to them. After dismissing respondents, Burgos filed a case for qualified theft against Soriano
and Gonzales before the Makati City Prosecutor's Office, but the case was dismissed for
insufficiency of evidence.
In his Affidavit,9 Soriano claimed that on October 4, 1997, he was barred from entering the
company premises and that the following day, Harbutt shouted at him for having participated in

the formation of a union. He was later dismissed from work. For his part, Gonzales averred that
he was coerced to resign by Percy and Harbutt in the presence of their goons. Badilla10 claimed
that she was also forced by Percy and Harbutt to sign a resignation letter, but she refused to do
so because she was innocent of the charges against her. She was nevertheless dismissed from
service.
The three (3) respondents averred that they never received the memoranda containing their
alleged violation of company rules and they argued that these memoranda were fabricated to
give a semblance of cause to their termination. Soriano and Gonzales further claimed that the
complaint filed against them was only an afterthought as the same was filed after petitioners
learned that a complaint for illegal dismissal was already instituted against them.
On September 27, 1998, the LA rendered a Decision11 finding that respondents were illegally
dismissed because the alleged violations they were charged with were not reduced in writing
and were not made known to them, thus, denying them due process. The LA found that
respondents did not actually receive the memoranda allegedly issued by petitioners, and that
the same were mere afterthought to conceal the illegal dismissal. The dispositive portion of the
Decision reads:
WHEREFORE, premises all considered, respondents (petitioners herein) are hereby ordered,
jointly and severally:
a. To reinstate within ten (10) days herein complainants to their former positions without
loss of seniority rights with full backwages from actual dismissal to actual reinstatement;
b. To declare the respondents (petitioners herein) guilty of unfair labor practice for
terminating complainants due to their union activities, which is union-busting, and to pay
a fine of Ten Thousand Pesos (P 10,000.00) pursuant to Article 288 of the Labor Code,
as amended, payable to the Commission;
c. To pay the amount of One Hundred Fifty Thousand [Pesos] (P 150,000.00) each to
complainants by way of moral and exemplary damages, plus ten percent (10%)
attorney's fees of the total award, chargeable to the respondents (petitioners herein).
SO ORDERED.12
Unsatisfied with the LA's decision, petitioners appealed to the National Labor Relations
Commission (NLRC). On August 31, 1999, the NLRC, First Division, rendered a
Decision13 remanding the case to the arbitration branch of origin for further proceedings.14 On
August 3, 2000, the LA rendered a new Decision, the dispositive portion of which reads as
follows:
WHEREFORE, premises all considered, respondents (petitioners herein) are hereby
ORDERED, jointly and severally:
a. to reinstate within ten (10) days herein three (3) complainants to their former positions
without loss of seniority rights with full backwages from actual dismissal to actual

reinstatement; to pay complainant Soriano his unpaid wages for seven (7) days in the
amount of P 1,680.00, his five (5) days incentive leave pay in the amount of P 1,200,00
(P 240x5), unpaid proportionate 13th month pay in the amount of P4,992.00, plus other
benefits;
b. to cease and desist from committing unfair labor practice against the complainant and
to pay a fine of Ten Thousand (P 10,000.00) Pesos pursuant to Art. 288 of the Labor
Code, payable to the Commission; and
c. to pay the amount of P 150,000.0015 each to the complainants by way of moral and
exemplary damages, plus ten percent (10%) attorney's fees of the total award,
chargeable to the respondents (petitioners herein).
SO ORDERED.16
Discontented with the LA's decision, petitioners again appealed to the NLRC. On February 1,
2001, the NLRC affirmed the LA's decision and dismissed the appeal for lack of
merit.17 Petitioners filed a motion for reconsideration, but it was denied for lack of merit.18
Undaunted, Park Hotel, Percy, and Harbutt filed a petition for certiorari with the CA ascribing
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC in
holding Park Hotel, Harbutt and Percy jointly and severally liable to respondents.
On January 24, 2005, the CA rendered a Decision19 dismissing the petition and affirming with
modification the ruling of the NLRC, the dispositive portion of which states:
WHEREFORE, the instant Petition is DISMISSED for lack of merit and the assailed Decision
dated 1 February 2001 of the 1st Division of the NLRC is hereby AFFIRMED with
MODIFICATION in that the award of damages is reduced to P 100,000.00 in favor of each of the
Private Respondents, including 10% of the total amount of wages to be received as attorney's
fees.
SO ORDERED.20
The CA ruled that petitioners failed to observe the mandatory requirements provided by law in
the conduct of terminating respondents, i.e., lack of due process and just cause. The CA also
found that petitioners' primary objective in terminating respondents' employment was to
suppress their right to self-organization.
Petitioners filed a Motion for Reconsideration, but was denied in the Resolution21 dated January
13, 2006.
Hence, the instant petition assigning the following errors:
I

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND


ACTED WITHOUT AUTHORITY IN FINDING PARK HOTEL, BILL PERCY AND
[GREGORY] HARBUTT, TOGETHER WITH BURGOS CORPORATION AND ITS
PRESIDENT, AS ONE AND THE SAME ENTITY.
II
THE HONORABLE COURT OF APPEALS COMMITTED ERROR WHEN IT
OVERLOOKED MATERIAL CIRCUMSTANCES AND FACTS, WHICH IF TAKEN INTO
ACCOUNT, WOULD ALTER THE RESULTS OF ITS DECISION, PARTICULARLY IN
FINDING [THAT] THE SAID ENTITIES WERE FORMED IN PURSUANCE TO THE
COMMISSION OF FRAUD.
III
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND
ACTED WITHOUT AUTHORITY IN FINDING PARK HOTEL, BILL PERCY AND
GREGORY HARBUTT, TOGETHER WITH BURGOS CORPORATION AND ITS
PRESIDENT, GUILTY OF UNFAIR LABOR PRACTICE.22
For brevity and clarity, the issues in this case may be re-stated and simplified as follows: (1)
whether the respondents were validly dismissed; and (2) if petitioners are liable, whether Park
Hotel, Percy and Harbutt are jointly and severally liable with Burgos for the dismissal of
respondents.
Park Hotel argued that it is not liable on the ground that respondents were not its employees.
On the other hand, Percy and Harbutt argued that the CA committed error in piercing the
corporate veil between them and respondent corporations, thereby making them all solidarily
liable to the respondents.
To begin with, it is significant to note that the LA, the NLRC and the CA were unanimous in their
findings that respondents were dismissed without just cause and due process. They were also
in agreement that unfair labor practice was committed against respondents. We reiterate the
rule that findings of fact of the Court of Appeals, particularly where it is in absolute agreement
with that of the NLRC and the LA, as in this case, are accorded not only respect but even finality
and are deemed binding upon this Court so long as they are supported by substantial
evidence.23 The function of this Court is limited to the review of the appellate courts alleged
errors of law. It is not required to weigh all over again the factual evidence already considered in
the proceedings below.24In any event, we found no compelling reason to disturb the unanimous
findings and conclusions of the CA, the NLRC and the LA with respect to the finding of illegal
dismissal.
The requisites for a valid dismissal are: (a) the employee must be afforded due process, i.e., he
must be given an opportunity to be heard and defend himself; and (b) the dismissal must be for
a valid cause as provided in Article 282 of the Labor Code, or for any of the authorized causes
under Articles 283 and 284 of the same Code.25 In the case before us, both elements are
completely lacking. Respondents were dismissed without any just or authorized cause and

without being given the opportunity to be heard and defend themselves. The law mandates that
the burden of proving the validity of the termination of employment rests with the employer.
Failure to discharge this evidentiary burden would necessarily mean that the dismissal was not
justified and, therefore, illegal. Unsubstantiated suspicions, accusations, and conclusions of
employers do not provide for legal justification for dismissing employees. In case of doubt, such
cases should be resolved in favor of labor, pursuant to the social justice policy of labor laws and
the Constitution.26
Anent the unfair labor practice, Article 248 (a) of the Labor Code27 considers it an unfair labor
practice when an employer interferes, restrains or coerces employees in the exercise of their
right to self-organization or the right to form an association.28 In order to show that the employer
committed unfair labor practice under the Labor Code, substantial evidence is required to
support the claim. Substantial evidence has been defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.29 In the case at bar,
respondents were indeed unceremoniously dismissed from work by reason of their intent to
form and organize a union. As found by the LA:
The immediate impulse of respondents (petitioners herein), as in the case at bar, was to
terminate the organizers. Respondents (petitioners herein) have to cripple the union at sight, to
frustrate attempts of employees from joining or supporting it, preventing them, at all cost and to
frustrate the employees bid to exercise their right to self-organization. x x x30
Having settled that respondents were illegally dismissed and were victims of unfair labor
practice, the question that comes to fore is who are liable for the illegal dismissal and unfair
labor practice?
A perusal of the records would show that Burgos is the respondents' employer at the time they
were dismissed. Notwithstanding, the CA held that despite Soriano's transfer to Burgos in 1992,
he was still an employee of Park Hotel at the time of his dismissal in 1997. The Court, however,
rules that the CA's finding is clearly contrary to the evidence presented. From the documents
presented by Soriano, it appears that Soriano's payroll passbook31contained withdrawals and
deposits, made in 1991, and that Soriano's payslip32 issued by Park Hotel covered the period
from September to October 1990. Hence, these documents merely show that Soriano was
employed by Park Hotel before he was transferred to Burgos in 1992. Nowhere in these
documents does it state that Soriano continued to work for Park Hotel in 1992 and onwards.
Clearly therefore, Park Hotel cannot be made liable for illegal dismissal as it no longer had
Soriano in its employ at the time he was dismissed from work.
As to whether Park Hotel may be held solidarily liable with Burgos, the Court rules that before a
corporation can be held accountable for the corporate liabilities of another, the veil of corporate
fiction must first be pierced.33Thus, before Park Hotel can be held answerable for the obligations
of Burgos to its employees, it must be sufficiently established that the two companies are
actually a single corporate entity, such that the liability of one is the liability of the other.34
A corporation is an artificial being invested by law with a personality separate and distinct from
that of its stockholders and from that of other corporations to which it may be connected.35 While
a corporation may exist for any lawful purpose, the law will regard it as an association of

persons or, in case of two corporations, merge them into one, when its corporate legal entity is
used as a cloak for fraud or illegality. This is the doctrine of piercing the veil of corporate fiction.
The doctrine applies only when such corporate fiction is used to defeat public convenience,
justify wrong, protect fraud, or defend crime, or when it is made as a shield to confuse the
legitimate issues, or where a corporation is the mere alter ego or business conduit of a person,
or where the corporation is so organized and controlled and its affairs are so conducted as to
make it merely an instrumentality, agency, conduit or adjunct of another corporation.36 To
disregard the separate juridical personality of a corporation, the wrongdoing must be
established clearly and convincingly. It cannot be presumed.37
In the case at bar, respondents utterly failed to prove by competent evidence that Park Hotel
was a mere instrumentality, agency, conduit or adjunct of Burgos, or that its separate corporate
veil had been used to cover any fraud or illegality committed by Burgos against the
respondents. Accordingly, Park Hotel and Burgos cannot be considered as one and the same
entity, and Park Hotel cannot be held solidary liable with Burgos.
Nonetheless, although the corporate veil between Park Hotel and Burgos cannot be pierced, it
does not necessarily mean that Percy and Harbutt are exempt from liability towards
respondents. Verily, a corporation, being a juridical entity, may act only through its directors,
officers and employees. Obligations incurred by them, while acting as corporate agents, are not
their personal liability but the direct accountability of the corporation they represent.38 However,
corporate officers may be deemed solidarily liable with the corporation for the termination of
employees if they acted with malice or bad faith.39 In the present case, the lower tribunals
unanimously found that Percy and Harbutt, in their capacity as corporate officers of Burgos,
acted maliciously in terminating the services of respondents without any valid ground and in
order to suppress their right to self-organization.
Section 3140 of the Corporation Code makes a director personally liable for corporate debts if he
willfully and knowingly votes for or assents to patently unlawful acts of the corporation. It also
makes a director personally liable if he is guilty of gross negligence or bad faith in directing the
affairs of the corporation.1wphi1 Thus, Percy and Harbutt, having acted in bad faith in directing
the affairs of Burgos, are jointly and severally liable with the latter for respondents' dismissal.
In cases when an employee is unjustly dismissed from work, he shall be entitled to
reinstatement without loss of seniority rights and other privileges, inclusive of allowances, and
other benefits or their monetary equivalent from the time the compensation was withheld up to
the time of actual reinstatement.41
In the case at bar, the Court finds that it would be best to award separation pay instead of
reinstatement, in view of the passage of a long period of time since respondents' dismissal.
In St. Luke's Medical Center, Inc. v. Notario,42 the Court held that if reinstatement proves
impracticable, and hardly in the best interest of the parties, due to the lapse of time since the
employee's dismissal, the latter should be awarded separation pay in lieu of reinstatement.
In view of the foregoing, respondents are entitled to the payment of full backwages, inclusive of
allowances, and other benefits or their monetary equivalent, and separation pay in lieu of
reinstatement equivalent to one month salary for every year of service.43 The awards of

separation pay and backwages are not mutually exclusive, and both may be given to
respondents.44
The awards of moral and exemplary damages45 in favor of respondents are also in order. Moral
damages may be recovered where the dismissal of the employee was tainted by bad faith or
fraud, or where it constituted an act oppressive to labor, and done in a manner contrary to
morals, good customs or public policy, while exemplary damages are recoverable only if the
dismissal was done in a wanton, oppressive, or malevolent manner.46 The grant of attorney's
fees is likewise proper. Attorney's fees may likewise be awarded to respondents who were
illegally dismissed in bad faith and were compelled to litigate or incur expenses to protect their
rights by reason of the oppressive acts47 of petitioners. The unjustified act of petitioners had
obviously compelled respondents to institute an action primarily to protect their rights and
interests which warrants the granting of the award.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 67766,
dated January 24, 2005 and January 13, 2006, respectively, are AFFIRMED with the
following MODIFICATIONS: (a) Petitioner Park Hotel is exonerated from any liability to
respondents; and (b) The award of reinstatement is deleted, and in lieu thereof, respondents are
awarded separation pay.
The case is REMANDED to the Labor Arbiter for the purpose of computing respondents' full
backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed
from the date of their dismissal up to the finality of the decision, and separation pay in lieu of
reinstatement equivalent to one month salary for every year of service, computed from the time
of their engagement up to the finality of this Decision.
SO ORDERED:
DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 196231

September 4, 2012

EMILIO A. GONZALES III, Petitioner,


vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy
Executive Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, and ATTY. CARLITOD. CATAYONG,Respondents.
x-----------------------x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF
THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAANG LEGAL AFFAIRS, Respondents.
DECISION
PERLAS-BERNABE, J.:
The Case
These two petitions have been consolidated not because they stem from the same factual
milieu but because they raise a common thread of issues relating to the President's exercise of
the power to remove from office herein petitioners who claim the protective cloak of
independence of the constitutionally-created office to which they belong - the Office of the
Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for
issuance of temporary restraining order or status quo order) which assails on jurisdictional
grounds the Decision1 dated March 31, 2011 rendered by the Office of the President in OP Case
No. 10-J-460 dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military
and Other Law Enforcement Offices (MOLEO), upon a finding of guilt on the administrative
charges of Gross Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust.
The petition primarily seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.)

No. 6770, otherwise known as the Ombudsman Act of 1989, which gives the President the
power to dismiss a Deputy Ombudsman of the Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order2 requiring petitioner Wendell Barreras-Sulit to
submit a written explanation with respect to alleged acts or omissions constituting serious/grave
offenses in relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major
General Carlos F. Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,3both
issued by the Office of the President in OP-DC-Case No. 11-B-003, the administrative case
initiated against petitioner as a Special Prosecutor of the Office of the Ombudsman. The petition
likewise seeks to declare as unconstitutional Section 8(2) of R.A. No. 6770 giving the President
the power to dismiss a Special Prosecutor of the Office of the Ombudsman.
The facts from which these two cases separately took root are neither complicated nor
unfamiliar.
In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of
a hostage drama that had slowly unfolded right at the very heart of the City of Manila. While
initial news accounts were fragmented it was not difficult to piece together the story on the
hostage-taker, Police Senior Inspector Rolando Mendoza. He was a disgruntled former police
officer attempting to secure his reinstatement in the police force and to restore the benefits of a
life-long, and erstwhile bemedaled, service. The following day, broadsheets and tabloids were
replete with stories not just of the deceased hostage-taker but also of the hostage victims, eight
of whom died during the bungled police operation to rescue the hapless innocents. Their tragic
deaths triggered word wars of foreign relation proportions. One newspaper headline ran the
story in detail, as follows:
MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed
with tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on
national television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m.
Mendoza hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement
to the police force.
The hostage drama dragged on even after the driver of the bus managed to escape and told
police that all the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels
of the bus to immobilize it.
Police used hammers to smash windows, door and wind-shield but were met with intermittent
fire from the hos-tage taker.

Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while
Mendoza was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending
bystanders scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire reportedly rang out
from inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially released nine
of the hostages during the drama that began at 10 a.m. and played out live on national
television.
Live television footage showed Mendoza asking for food for those remaining in the bus, which
was delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer
was reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3
p.m. today." Another sign stuck to another window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big
mistake to correct a big wrong decision." A larger piece of paper on the front windshield was
headed, "Release final decision," apparently referring to the case that led to his dismissal from
the police force.
Negotiations dragged on even after Mendoza's self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due
process, no hearing, no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in
front of national television. This triggered the crisis that eventually forced Mendoza to carry out
his threat and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to
talk Mendoza into surrendering and releasing the 21 hostages, mostly children and three
Filipinos, including the driver, the tourist guide and a photographer. Yebra reportedly lent a
cellphone to allow communications with Mendoza in-side the bus, which was parked in front
ofthe Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the bus while police negotiators
hovered near the scene.

Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee
had been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de
Jesus said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did
not elaborate on the contents of the letter but said Moreno was tasked to personally deliver the
letter to Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by
the slow process of the Ombudsman in deciding his motion for reconside-ration. He said the
PNP-Internal Affairs Service and the Manila Regional Trial Court had already dismissed criminal cases against him.
The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus
(TVU-799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in
Intramuros when Mendoza asked the driver to let him get on and ride to Quirino Grandstand.
Upon reaching the Quirino Grandstand, Mendoza an-nounced to the passengers that they
would be taken hostage. "Having worn his (police) uniform, of course there is no doubt that he
already planned the hostage taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon
Porcalla, Amanda Fisher, Cecille Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage,
The Philippine Star, Updated August 24, 2010 12:00 AM, Val Rodri-guez.4
In a completely separate incident much earlier in time, more particularly in December of 2003,
28-year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United
States smuggling $100,000 from Manila by concealing the cash in their luggage and making
false statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash
smuggling and agreed to forfeit the amount in favor of the US Government in exchange for the
dismissal of the rest of the charges against them and for being sentenced to time served.
Inevitably, however, an investigation into the source of the smuggled currency conducted by US
Federal Agents and the Philippine Government unraveled a scandal of military corruption and
amassed wealth -- the boys' father, Retired Major General Carlos F. Garcia, former Chief
Procurement Officer of the Armed Forces, had accumulated more than P 300 Million during his
active military service. Plunder and Anti-Money Laundering cases were eventually filed against
Major General Garcia, his wife and their two sons before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge5 for Grave Misconduct (robbery, grave threats, robbery
extortion and physical injuries) was filed before the Philippine National Police-National Capital
Region (PNP-NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando
Mendoza, and four others, namely, Police Inspector Nelson Lagasca, Senior Police Inspector I
Nestor David, Police Officer III Wilson Gavino, and Police Officer II Roderick Lopena. A similar
charge was filed by the private complainant, Christian M. Kalaw, before the Office of the City
Prosecutor, Manila, docketed as I.S. No. 08E-09512.

On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A.
Gonzales III, all relevant documents and evidence in relation to said case to the Office of the
Deputy Ombudsman for appropriate administrative adjudication.6 Subsequently, Case No. OMBP-A-08-0670-H for Grave Misconduct was lodged against P/S Insp. Rolando Mendoza and his
fellow police officers, who filed their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed7 upon a finding that the
material allegations made by the complainant had not been substantiated "by any evidence at
all to warrant the indictment of respondents of the offenses charged." Similarly, the Internal
Affairs Service of the PNP issued a Resolution8dated October 17, 2008 recommending the
dismissal without prejudice of the administrative case against the same police officers, for failure
of the complainant to appear in three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision9 in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow
police officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive
portion of said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL
ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA,
SPO1 NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police
District, Headquarters, United Nations Avenue, Manila, be meted the penalty
of DISMISSAL from the Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on
Administrative Cases in the Civil Service, with the accessory penalties of forfeiture of retirement
benefits and perpetual disqualification from reemployment in the government service pursuant
to Section 58, Rule IV of the same Uniform Rules of Administrative Cases in the Civil Service,
for having committed GRAVE MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration10 of the foregoing Decision,
followed by a Supplement to the Motion for Reconsideration11 on November 19, 2009. On
December 14, 2009, the pleadings mentioned and the records of the case were assigned for
review and recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who
released a draft Order12 on April 5, 2010 for appropriate action by his immediate superior,
Director Eulogio S. Cecilio, who, in turn, signed and forwarded said Order to petitioner
Gonzalez's office on April 27, 2010. Not more than ten (10) days after, more particularly on May
6, 2010, petitioner endorsed the Order, together with the case records, for final approval by
Ombudsman Merceditas N. Gutierrez, in whose office it remained pending for final review and
action when P/S Insp. Mendoza hijacked a bus-load of foreign tourists on that fateful day of
August 23, 2010 in a desperate attempt to have himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight
HongKong Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando
Mendoza, a public outcry against the blundering of government officials prompted the creation
of the Incident Investigation and Review Committee (IIRC),13 chaired by Justice Secretary Leila
de Lima and vice-chaired by Interior and Local Government Secretary Jesus Robredo. It was

tasked to determine accountability for the incident through the conduct of public hearings and
executive sessions. However, petitioner, as well as the Ombudsman herself, refused to
participate in the IIRC proceedings on the assertion that the Office of the Ombudsman is an
independent constitutional body.
Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,14 the IIRC made the
following findings:
Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross
violation of their own rules of procedure by allowing Mendoza's motion for reconsideration to
languish for more than nine (9) months without any justification, in violation of the Ombudsman
prescribed rules to resolve motions for reconsideration in administrative disciplinary cases within
five (5) days from submission. The inaction is gross, considering there is no opposition thereto.
The prolonged inaction precipitated the desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not
without legal and compelling bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a
case for alleged robbery (extortion), grave threats and physical injuries amounting to
grave misconduct allegedly committed against a certain Christian Kalaw. The same
case, however, was previously dismissed by the Manila City Prosecutors Office for lack
of probable cause and by the PNP-NCR Internal Affairs Service for failure of the
complainant (Christian Kalaw) to submit evidence and prosecute the case. On the other
hand, the case which was filed much ahead by Mendoza et al. against Christian Kalaw
involving the same incident, was given due course by the City Prosecutors Office.
(b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu
proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR - without
citing any reason - to endorse the case against Mendoza and the arresting policemen to
his office for administrative adjudication, thereby showing undue interest on the case. He
also caused the docketing of the case and named Atty. Clarence V. Guinto of the PNPCIDG-NCR, who indorsed the case records, as the nominal complainant, in lieu of
Christian Kalaw. During the proceedings, Christian Kalaw did not also affirm his
complaint-affidavit with the Ombudsman or submit any position paper as required.
(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for
grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009)
based on the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was
not previously sustained by the City Prosecutor's Office and the PNP Internal Affairs
Service. From the said Resolution, Mendoza interposed a timely motion for
reconsideration (dated and filed November 5, 2009) as well as a supplement thereto. No
opposition or comment was filed thereto.
(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in the

PNP with forfeiture of all his benefits. As a result, Mendoza sought urgent relief by
sending several hand-written letter-requests to the Ombudsman for immediate resolution
of his motion for reconsideration. But his requests fell on deaf ears.
xxxx
By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without
any justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed
complete and wanton violation of the Ombudsman prescribed rule to resolve motions for
reconsideration in administrative disciplinary cases within five (5) days from submission (Sec. 8,
Ombudsman Rules of Procedure). The inaction is gross, there being no opposition to the motion
for reconsideration.
Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily
enforced the judgment of dismissal and ignored the intervening requests for immediate
resolution, thereby rendering the inaction even more inexcusable and unjust as to amount to
gross negligence and grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious
disregard of due process, manifest injustice and oppression in failing to provisionally suspend
the further implementation of the judgment of dismissal against Mendoza pending disposition of
his unresolved motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for reconsideration for over
nine months, the two Ombudsman officials acted with arbitrariness and without regard to due
process and the constitutional right of an accused to the speedy disposition of his case. As long
as his motion for reconsideration remained pending and unresolved, Mendoza was also
effectively deprived of the right to avail of the ordinary course of appeal or review to challenge
the judgment of dismissal before the higher courts and seek a temporary restraining order to
prevent the further execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it
should have provisionally suspended the further enforcement of the judgment of dismissal
without prejudice to its re-implementation if the reconsideration is eventually denied. Otherwise,
the Ombudsman will benefit from its own inaction. Besides, the litigant is entitled to a stay of the
execution pending resolution of his motion for reconsideration. Until the motion for
reconsideration is denied, the adjudication process before the Ombudsman cannot be
considered as completely finished and, hence, the judgment is not yet ripe for execution.
xxxx
When the two Ombudsman officials received Mendoza's demand for the release of the final
order resolving his motion for reconsideration, they should have performed their duty by
resolving the reconsideration that same day since it was already pending for nine months and
the prescribed period for its resolution is only five days. Or if they cannot resolve it that same
day, then they should have acted decisively by issuing an order provisionally suspending the
further enforcement of the judgment of dismissal subject to revocation once the reconsideration

is denied and without prejudice to the arrest and prosecution of Mendoza for the hostage-taking.
Had they done so, the crisis may have ended peacefully, without necessarily compromising the
integrity of the institution. After all, as relayed to the negotiators, Mendoza did express
willingness to take full responsibility for the hostage-taking if his demand for release of the final
decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely offered to review a
pending motion for review of the case, thereby prolonging their inaction and aggravating the
situation. As expected, Mendoza - who previously berated Deputy Gonzales for allegedly
demanding Php150,000 in exchange for favorably resolving the motion for reconsideration rejected and branded as trash ("basura") the Ombudsman [sic] letter promising review,
triggering the collapse of the negotiations. To prevent the situation from getting out of hand, the
negotiators sought the alternative option of securing before the PNP-NCRPO an order for
Mendoza's provisional reinstatement pending resolution of the motion for reconsideration.
Unfortunately, it was already too late. But had the Ombudsman officials performed their duty
under the law and acted decisively, the entire crisis may have ended differently.
The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the
Office of the President (OP) for further determination of possible administrative offenses and for
the initiation of the proper administrative proceedings.
On October 15, 2010, the OP instituted a Formal Charge15 against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section
22 of the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil
Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the AntiGraft and Corrupt Practices Act.16 Petitioner filed his Answer17 thereto in due time.
Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the
Internal Affairs Board of the Office of the Ombudsman charging petitioner with "directly or
indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or
for any other person, in connection with any contract or transaction between the Government
and any other party, wherein the public officer in his official capacity has to intervene under the
law" under Section 3(b) of the Anti-Graft and Corrupt Practices Act, and also, with solicitation or
acceptance of gifts under Section 7(d) of the Code of Conduct and Ethical Standards.18 In a
Joint Resolution19 dated February 17, 2011, which was approved by Ombudsman Ma.
Merceditas N. Gutierrez, the complaint was dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.
Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713,
the complaint is hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct,
the same is likewise DISMISSED.

Meanwhile, the OP notified20 petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales
alleged,21 however, that on February 4, 2011, he heard the news that the OP had announced his
suspension for one year due to his delay in the disposition of P/S Insp. Mendoza's motion for
reconsideration. Hence, believing that the OP had already prejudged his case and that any
proceeding before it would simply be a charade, petitioner no longer attended the scheduled
clarificatory conference. Instead, he filed an Objection to Proceedings22 on February 7, 2011.
Despite petitioner's absence, however, the OP pushed through with the proceedings and, on
March 31, 2011, rendered the assailed Decision,23 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A.
Gonzales III guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of
public trust, and hereby meted out the penalty of DISMISSAL from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan
Paulo Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal
Case No. 28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the
Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused.
On May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted
and the PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of
his culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3,24 recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for
having committed acts and/or omissions tantamount to culpable violations of the Constitution
and betrayal of public trust, which are violations under the Anti-Graft and Corrupt Practices Act
and grounds for removal from office under the Ombudsman Act.

The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit.
In her written explanation, petitioner raised the defenses of prematurity and the lack of
jurisdiction of the OP with respect to the administrative disciplinary proceeding against her. The
OP, however, still proceeded with the case, setting it for preliminary investigation on April 15,
2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS
DECISION IN VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE
DISPOSITION OF MENDOZA'S MOTION FOR RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN
MENDOZA'S CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION
ON MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING
MENDOZA'S DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.

(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW
THAT PETITIONER DEMANDED A BRIBE FROM MENDOZA.25
On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the
question AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE
ADMINISTRATIVE DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND
JUSTIFIABLE?26
Re-stated, the primordial question in these two petitions is whether the Office of the President
has jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a
Special Prosecutor who belong to the constitutionally-created Office of the Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary means of removal, petitioners
asseverate that the President has no disciplinary jurisdiction over them considering that the
Office of the Ombudsman to which they belong is clothed with constitutional independence and
that they, as Deputy Ombudsman and Special Prosecutor therein, necessarily bear the
constitutional attributes of said office.
The Court is not convinced.
The Ombudsman's administrative
disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative
investigations proceeds from its constitutional mandate to be an effective protector of the people
against inept and corrupt government officers and employees,27 and is subsumed under the
broad powers "explicitly conferred" upon it by the 1987 Constitution and R.A. No. 6770.28
The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish
term, which literally means "agent" or "representative," communicates the concept that has
been carried on into the creation of the modern-day ombudsman, that is, someone who acts as
a neutral representative of ordinary citizens against government abuses.29 This idea of a
people's protector was first institutionalized in the Philippines under the 1973 Constitution with
the creation of the Tanodbayan, which wielded the twin powers of investigation and prosecution.
Section 6, Article XIII of the 1973 Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including

those in government-owned or controlled corporations, make appropriate recommendations,


and in case of failure of justice as defined by law, file and prosecute the corresponding criminal,
civil, or administrative case before the proper court or body.
The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against
administrative officials", and to function purely with the "prestige and persuasive powers of his
office" in correcting improprieties, inefficiencies and corruption in government freed from the
hampering effects of prosecutorial duties.30 Accordingly, Section 13, Article XI of the 1987
Constitution enumerates the following powers, functions, and duties of the Office of the
Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public
official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and expedite any
act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee
at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and
ensure compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as
may be provided by law, to furnish it with copies of documents relating to contracts or
transactions entered into by his office involving the disbursement or use of public funds or
properties, and report any irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations for their elimination and the observance of high
standards of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other powers or perform such
functions or duties as may be provided by law.31
Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman
Act of 1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"32 as follows:

Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman
shall have disciplinary authority over all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their subsidiaries, except over
officials who may be removed only by impeachment or over Members of Congress, and the
Judiciary.(Emphasis supplied)
In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman
was explicitly conferred the statutory power to conduct administrative investigations under
Section 19 of the same law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but
not limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's functions, though in accordance with
law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor.
Thus:
Section 8. Removal; Filling of Vacancy.xxxx
(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of
the grounds provided for the removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting a statute, care should be taken
that every part thereof be given effect, on the theory that it was enacted as an integrated
measure and not as a hodge-podge of conflicting provisions. A construction that would render a
provision inoperative should be avoided; instead, apparently inconsistent provisions should be

reconciled whenever possible as parts of a coordinated and harmonious whole.33 Otherwise


stated, the law must not be read in truncated parts. Every part thereof must be considered
together with the other parts, and kept subservient to the general intent of the whole
enactment.34
A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads
to the inevitable conclusion that Congress had intended the Ombudsman and the President to
exercise concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this
matter are quite insightful, viz:
x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the
President alone has the power to remove the Deputy Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that
he can be removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate
authority.
Senator Guingona contended, however, that the Constitution provides for an independent Office
of the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not averse to the proposal,
however, considering the Chair's observation that vesting such authority upon the Tanodbayan
itself could result in mutual protection, it is necessary that an outside official should be vested
with such authority to effect a check and balance.35
Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and
Section 21 - in the same Organic Act was to provide for an external authority, through the
person of the President, that would exercise the power of administrative discipline over the
Deputy Ombudsman and Special Prosecutor without in the least diminishing the constitutional
and plenary authority of the Ombudsman over all government officials and employees. Such
legislative design is simply a measure of "check and balance" intended to address the
lawmakers' real and valid concern that the Ombudsman and his Deputy may try to protect one
another from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in
favor of shared authority in Hagad v. Gozo Dadole.36 In said case, the Mayor and Vice-Mayor of

Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office
of the Deputy Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and
the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman had
been divested of his authority to conduct administrative investigations over said local elective
officials by virtue of the subsequent enactment of the Local Government Code of 1991 (R.A. No.
7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring
local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an
independent component city or component city shall be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor
General that R.A. No. 7160 should be viewed as having conferred on the Office of the
President, but not on an exclusive basis, disciplinary authority over local elective officials.
Despite the fact that R.A. No. 7160 was the more recent expression of legislative will, no repeal
of pertinent provisions in the Ombudsman Act was inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to
only uphold one and strike down the other. Well settled is the rule that repeals of laws by
implication are not favored, and that courts must generally assume their congruent application.
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before
the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare
et concordare legibus est optimus interpretendi, i.e., every statute must be so interpreted and
brought into accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the existing laws on the
subject and not to have enacted conflicting statutes. Hence, all doubts must be resolved against
any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all
laws on the subject.37
While Hagad v. Gozo Dadole38 upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No.
7160, the more recent case of the Office of the Ombudsman v. Delijero39 tempered the exercise
by the Ombudsman of such plenary power invoking Section 23(2)40 of R.A. No. 6770, which
gives the Ombudsman the option to "refer certain complaints to the proper disciplinary authority
for the institution of appropriate administrative proceedings against erring public officers or
employees." The Court underscored therein the clear legislative intent of imposing "a standard
and a separate set of procedural requirements in connection with administrative proceedings
involving public school teachers"41 with the enactment of R.A. No. 4670, otherwise known as
"The Magna Carta for Public School Teachers." It thus declared that, while the Ombudsman's
administrative disciplinary authority over a public school teacher is concurrent with the proper
investigating committee of the Department of Education, it would have been more prudent under
the circumstances for the Ombudsman to have referred to the DECS the complaint against the
public school teacher.

Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and
mete out administrative sanctions upon them, including the extreme penalty of dismissal from
the service. However, it is equally without question that the President has concurrent authority
with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit
under specified conditions. Considering the principles attending concurrence of jurisdiction
where the Office of the President was the first to initiate a case against petitioner Gonzales,
prudence should have prompted the Ombudsman to desist from proceeding separately against
petitioner through its Internal Affairs Board, and to defer instead to the President's assumption of
authority, especially when the administrative charge involved "demanding and soliciting a sum of
money" which constitutes either graft and corruption or bribery, both of which are grounds
reserved for the President's exercise of his authority to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the
charge of graft and corruption against petitioner could not have the effect of preventing the
Office of the President from proceeding against petitioner upon the same ground of graft and
corruption. After all, the doctrine of res judicata applies only to judicial or quasi-judicial
proceedings, not to the exercise of administrative powers.42 In Montemayor v. Bundalian,43 the
Court sustained the President's dismissal from service of a Regional Director of the Department
of Public Works and Highways (DPWH) who was found liable for unexplained wealth upon
investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC).
The Court categorically ruled therein that the prior dismissal by the Ombudsman of similar
charges against said official did not operate as res judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint
the Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of
at least six nominees prepared by the Judicial and Bar Council, and from a list of three
nominees for every vacancy thereafter. Such appointments shall require no confirmation. All
vacancies shall be filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no
constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman,
or a Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply
filled a gap in the law without running afoul of any provision in the Constitution or existing
statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the
removal of all other public officers, including the Deputy Ombudsman and Special Prosecutor,
who are not subject to impeachment.

That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations45 of the Constitutional
Commission, thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will
perform his duties because he is something like a guardian of the government. This recalls the
statement of Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet
ipsos custodies", who will guard the guardians? I understand here that the Ombudsman who
has the rank of a chairman of a constitutional commission is also removable only by
impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank
of". We know, for instance, that the City Fiscal of Manila has the rank of a justice of the
Intermediate Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify
that also and read our discussions into the Record for purposes of the Commission and the
Committee.46
xxx
THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to
include the Ombudsman among those officials who have to be removed from office only
onimpeachment. Is that right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.47 (Emphasis supplied)
The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is

Implied from his Power to


Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove.48 As
a general rule, therefore, all officers appointed by the President are also removable by
him.49 The exception to this is when the law expressly provides otherwise - that is, when the
power to remove is expressly vested in an office or authority other than the appointing power. In
some cases, the Constitution expressly separates the power to remove from the President's
power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the
Supreme Court and judges of lower courts shall be appointed by the President. However,
Members of the Supreme Court may be removed after impeachment proceedings initiated by
Congress (Section 2, Article XI), while judges of lower courts may be removed only by the
Supreme Court by virtue of its administrative supervision over all its personnel (Sections 6 and
11, Article VIII). The Chairpersons and Commissioners of the Civil Service Commission Section
1(2), Article IX(B), the Commission on Elections Section 1(2), Article IX(C), and the Commission
on Audit Section 1(2), Article IX(D) shall likewise be appointed by the President, but they may be
removed only by impeachment (Section 2, Article XI). As priorly stated, the Ombudsman himself
shall be appointed by the President (Section 9, Article XI) but may also be removed only by
impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the
President's constitutional authority to appoint the aforesaid officials in the Office of the
Ombudsman.
The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire
and obtain information and the function to adopt, institute and implement preventive
measures.50 In order to ensure the effectiveness of his constitutional role, the Ombudsman was
provided with an over-all deputy as well as a deputy each for Luzon, Visayas and Mindanao.
However, well into the deliberations of the Constitutional Commission, a provision for the
appointment of a separate deputy for the military establishment was necessitated by
Commissioner Ople's lament against the rise within the armed forces of "fraternal associations
outside the chain of command" which have become the common soldiers' "informal grievance
machinery" against injustice, corruption and neglect in the uniformed service,51 thus:
In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal
association outside the chain of command proposing reformist objectives. They constitute, in
fact, an informal grievance machinery against injustices to the rank and file soldiery and
perceive graft in higher rank and neglect of the needs of troops in combat zones. The Reform
the Armed Forces Movement of RAM has kept precincts for pushing logistics to the field, the
implied accusation being that most of the resources are used up in Manila instead of sent to
soldiers in the field. The Guardians, the El Diablo and other organizations dominated by enlisted
men function, more or less, as grievance collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The

Ombudsman can designate a deputy to help the ordinary foot soldier get through with his
grievance to higher authorities. This deputy will, of course work in close cooperation with the
Minister of National Defense because of the necessity to maintain the integrity of the chain of
command. Ordinary soldiers, when they know they can turn to a military Ombudsman for their
complaints, may not have to fall back on their own informal devices to obtain redress for their
grievances. The Ombudsman will help raise troop morale in accordance with a major professed
goal of the President and the military authorities themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise
be appointed. (Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military
watchdog looking into abuses and irregularities that affect the general morale and
professionalism in the military is certainly of primordial importance in relation to the President's
own role asCommander-in-Chief of the Armed Forces. It would not be incongruous for
Congress, therefore, to grant the President concurrent disciplinary authority over the Deputy
Ombudsman for the military and other law enforcement offices.
Granting the President the Power
to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a
Deputy Ombudsman from office totally frustrates, if not resultantly negates the independence of
the Office of the Ombudsman is tenuous. The independence which the Office of the
Ombudsman is vested with was intended to free it from political considerations in pursuing its
constitutional mandate to be a protector of the people. What the Constitution secures for the
Office of the Ombudsman is, essentially, political independence. This means nothing more than
that "the terms of office, the salary, the appointments and discipline of all persons under the
office" are "reasonably insulated from the whims of politicians."52 And so it was that Section 5,
Article XI of the 1987 Constitution had declared the creation of the independent Office of the
Ombudsman, composed of the Ombudsman and his Deputies, who are described as
"protectors of the people" and constitutionally mandated to act promptly on complaints filed in
any form or manner against public officials or employees of the Government Section 12, Article
XI. Pertinent provisions under Article XI prescribes a term of office of seven years without
reappointment Section 11, prohibits a decrease in salaries during the term of office Section 10,
provides strict qualifications for the office Section 8, grants fiscal autonomy Section 14 and
ensures the exercise of constitutional functions Section 12 and 13. The cloak of independence
is meant to build up the Office of the Ombudsman's institutional strength to effectively function
as official critic, mobilizer of government, constitutional watchdog53 and protector of the people.

It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the Office of the Ombudsman from
political influences and the discretionary acts of the executive, Congress laid down two
restrictions on the President's exercise of such power of removal over a Deputy Ombudsman,
namely: (1) that the removal of the Deputy Ombudsman must be for any of the grounds
provided for the removal of the Ombudsman and (2) that there must be observance of due
process. Reiterating the grounds for impeachment laid down in Section 2, Article XI of the 1987
Constitution, paragraph 1 of Section 8 of R.A. No. 6770 states that the Deputy Ombudsman
may be removed from office for the same grounds that the Ombudsman may be removed
through impeachment, namely, "culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust." Thus, it cannot be rightly said that
giving the President the power to remove a Deputy Ombudsman, or a Special Prosecutor for
that matter, would diminish or compromise the constitutional independence of the Office of the
Ombudsman. It is, precisely, a measure of protection of the independence of the Ombudsman's
Deputies and Special Prosecutor in the discharge of their duties that their removal can only be
had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,54 the Court elucidated on the nature of the
Ombudsman's independence in this wise The prosecution of offenses committed by public officers is vested in the Office of the
Ombudsman. To insulate the Office from outside pressure and improper influence, the
Constitution as well as RA 6770 has endowed it with a wide latitude of investigatory and
prosecutory powers virtually free from legislative, executive or judicial intervention. This Court
consistently refrains from interfering with the exercise of its powers, and respects the initiative
and independence inherent in the Ombudsman who, 'beholden to no one, acts as the champion
of the people and the preserver of the integrity of public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the
OP proceeded with the administrative case against him despite his non-attendance thereat.
Petitioner was admittedly able to file an Answer in which he had interposed his defenses to the
formal charge against him. Due process is satisfied when a person is notified of the charge
against him and given an opportunity to explain or defend himself. In administrative
proceedings, the filing of charges and giving reasonable opportunity for the person so charged

to answer the accusations against him constitute the minimum requirements of due
process.55 Due process is simply having the opportunity to explain one's side, or an opportunity
to seek a reconsideration of the action or ruling complained of.56
The essence of due process is that a party is afforded reasonable opportunity to be heard and
to submit any evidence he may have in support of his defense.57 Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present
evidence, the requirements of due process are satisfactorily complied with because what the
law abhors is an absolute lack of opportunity to be heard.58Besides, petitioner only has himself
to blame for limiting his defense through the filing of an Answer. He had squandered a
subsequent opportunity to elucidate upon his pleaded defenses by adamantly refusing to attend
the scheduled Clarificatory Conference despite notice. The OP recounted as follows It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate
opportunities to explain his side and answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second
instance, this Office called a Clarificatory Conference on 8 February 2011 pursuant to
respondent's express election of a formal investigation. Despite due notice, however,
respondent Deputy Ombudsman refused to appear for said conference, interposing an objection
based on the unfounded notion that this Office has prejudged the instant case. Respondent
having been given actual and reasonable opportunity to explain or defend himself in due course,
the requirement of due process has been satisfied.59
In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,60which is more than a mere scintilla and means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.61 The fact, therefore, that
petitioner later refused to participate in the hearings before the OP is not a hindrance to a
finding of his culpability based on substantial evidence, which only requires that a decision must
"have something upon which it is based."62
Factual findings of administrative bodies are controlling when supported by substantial
evidence.63 The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the
finding of gross neglect of duty and grave misconduct in office amounting to a betrayal of public
trust, which is a constitutional ground for the removal by impeachment of the Ombudsman
(Section 2, Article XI, 1987 Constitution), and a statutory ground for the President to remove
from office a Deputy Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman
Act.
The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained
action in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his
failure to verify the basis for requesting the Ombudsman to take over the case; his
pronouncement of administrative liability and imposition of the extreme penalty of dismissal on
P/S Insp. Mendoza based upon an unverified complaint-affidavit; his inordinate haste in
implementing P/S Insp. Mendoza's dismissal notwithstanding the latter's non-receipt of his copy

of the Decision and the subsequent filing of a motion for reconsideration; and his apparent
unconcern that the pendency of the motion for reconsideration for more than five months had
deprived P/S Insp. Mendoza of available remedies against the immediate implementation of the
Decision dismissing him from the service.
Thus, taking into consideration the factual determinations of the IIRC, the allegations and
evidence of petitioner in his Answer as well as other documentary evidence, the OP concluded
that: (1) petitioner failed to supervise his subordinates to act with dispatch on the draft resolution
of P/S Insp. Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S
Insp. Mendoza by effectively depriving the latter of the right to challenge the dismissal before
the courts and prevent its immediate execution, and (2) petitioner showed undue interest by
having P/S Insp. Mendoza's case endorsed to the Office of the Ombudsman and resolving the
same against P/S Insp. Mendoza on the basis of the unverified complaint-affidavit of the alleged
victim Christian Kalaw.
The invariable rule is that administrative decisions in matters within the executive jurisdiction
can only be set aside on proof of gross abuse of discretion, fraud, or error of law.64 In the instant
case, while the evidence may show some amount of wrongdoing on the part of petitioner, the
Court seriously doubts the correctness of the OP's conclusion that the imputed acts amount to
gross neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that
petitioner's offenses, as they factually appear, weigh heavily enough to constitute betrayal of
public trust would be to ignore the significance of the legislature's intent in prescribing the
removal of the Deputy Ombudsman or the Special Prosecutor for causes that, theretofore, had
been reserved only for the most serious violations that justify the removal by impeachment of
the highest officials of the land.
Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls
for a deeper, circumspective look at the nature of the grounds for the removal of a Deputy
Ombudsman and a Special Prosecutor vis-a-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to
the existing grounds of culpable violation of the Constitution, treason, bribery, graft and
corruption and other high crimes. While it was deemed broad enough to cover any violation of
the oath of office,65 the impreciseness of its definition also created apprehension that "such an
overarching standard may be too broad and may be subject to abuse and arbitrary exercise by
the legislature."66 Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"67could be easily utilized for every conceivable misconduct or negligence in office.
However, deliberating on some workable standard by which the ground could be reasonably
interpreted, the Constitutional Commission recognized that human error and good faith
precluded an adverse conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable
Regalado. I am not a lawyer so I can anticipate the difficulties that a layman may encounter in
understanding this provision and also the possible abuses that the legislature can commit in

interpreting this phrase. It is to be noted that this ground was also suggested in the 1971
Constitutional Convention. A review of the Journals of that Convention will show that it was not
included; it was construed as encompassing acts which are just short of being criminal but
constitute gross faithlessness against public trust, tyrannical abuse of power, inexcusable
negligence of duty, favoritism, and gross exercise of discretionary powers. I understand from the
earlier discussions that these constitute violations of the oath of office, and also I heard the
Honorable Davide say that even the criminal acts that were enumerated in the earlier 1973
provision on this matter constitute betrayal of public trust as well. In order to avoid confusion,
would it not be clearer to stick to the wording of Section 2 which reads: "may be removed from
office on impeachment for and conviction of, culpable violation of the Constitution, treason,
bribery, and other high crimes, graft and corruption or VIOLATION OF HIS OATH OF OFFICE",
because if betrayal of public trust encompasses the earlier acts that were enumerated, then it
would behoove us to be equally clear about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words
"betrayal of public trust" in the 1986 Constitution. But I would like him to know that we are
amenable to any possible amendment. Besides, I think plain error of judgment, where
circumstances may indicate that there is good faith, to my mind, will not constitute betrayal of
public trust if that statement will allay the fears of difficulty in interpreting the term."68 (Emphasis
supplied)
The Constitutional Commission eventually found it reasonably acceptable for the phrase
betrayal of public trust to refer to "acts which are just short of being criminal but constitute gross
faithlessness against public trust, tyrannical abuse of power, inexcusable negligence of duty,
favoritism, and gross exercise of discretionary powers."69 In other words, acts that should
constitute betrayal of public trust as to warrant removal from office may be less than criminal but
must be attended by bad faith and of such gravity and seriousness as the other grounds for
impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of
public trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes
of impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of
judgment, this should remain true even for purposes of removing a Deputy Ombudsman and
Special Prosecutor from office. Hence, the fact that the grounds for impeachment have been
made statutory grounds for the removal by the President of a Deputy Ombudsman and Special
Prosecutor cannot diminish the seriousness of their nature nor the acuity of their scope.
Betrayal of public trust could not suddenly "overreach" to cover acts that are not vicious or
malevolent on the same level as the other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution
of the case, or to his error of judgment in the disposition thereof. Neither should petitioner's
official acts in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting

deaths at the Quirino Grandstand. The failure to immediately act upon a party's requests for an
early resolution of his case is not, by itself, gross neglect of duty amounting to betrayal of public
trust. Records show that petitioner took considerably less time to act upon the draft resolution
after the same was submitted for his appropriate action compared to the length of time that said
draft remained pending and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez.
He reviewed and denied P/S Insp. Mendoza's motion for reconsideration within nine (9)
calendar days reckoned from the time the draft resolution was submitted to him on April 27,
2010 until he forwarded his recommendation to the Office of Ombudsman Gutierrez on May 6,
2010 for the latter's final action. Clearly, the release of any final order on the case was no longer
in his hands.
Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition,
the same cannot be considered a vicious and malevolent act warranting his removal for betrayal
of public trust. More so because the neglect imputed upon petitioner appears to be an isolated
case.
Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation
of his undue interest in the case that would amount to wrongful or unlawful conduct. After all,
taking cognizance of cases upon the request of concerned agencies or private parties is part
and parcel of the constitutional mandate of the Office of the Ombudsman to be the "champion of
the people." The factual circumstances that the case was turned over to the Office of the
Ombudsman upon petitioner's request; that administrative liability was pronounced against P/S
Insp. Mendoza even without the private complainant verifying the truth of his statements; that
the decision was immediately implemented; or that the motion for reconsideration thereof
remained pending for more than nine months cannot be simply taken as evidence of petitioner's
undue interest in the case considering the lack of evidence of any personal grudge, social ties
or business affiliation with any of the parties to the case that could have impelled him to act as
he did. There was likewise no evidence at all of any bribery that took place, or of any corrupt
intention or questionable motivation.
Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside,
as the findings of neglect of duty or misconduct in office do not amount to a betrayal of public
trust. Hence, the President, while he may be vested with authority, cannot order the removal of
petitioner as Deputy Ombudsman, there being no intentional wrongdoing of the grave and
serious kind amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall
short of the constitutional standard of betrayal of public trust, considering the OP's factual
findings of negligence and misconduct against petitioner, the Court deems it appropriate to refer
the case to the Office of the Ombudsman for further investigation of the charges in OP Case No.
10-J-460 and the imposition of the corresponding administrative sanctions, if any.

Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is
entitled to reinstatement to his former position as Deputy Ombudsman and to the payment of
backwages and benefits corresponding to the period of his suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to
remove her from office upon the averment that without the Sandiganbayan's final approval and
judgment on the basis of the PLEBARA, it would be premature to charge her with acts and/or
omissions "tantamount to culpable violations of the Constitution and betrayal of public trust,"
which are grounds for removal from office under Section 8, paragraph (2) of the Ombudsman
Act of 1989; and which also constitute a violation of Section 3, paragraph (e) of Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act) - causing undue injury to the Government or giving
any private party any unwarranted benefits, advantage or preference through manifest partiality,
evident bad faith or gross inexcusable negligence. With reference to the doctrine of prejudicial
procedural antecedent, petitioner Barreras-Sulit asserts that the propriety of taking and
continuing to take administrative disciplinary proceeding against her must depend on the final
disposition by the Sandiganbayan of the PLEBARA, explaining that if the Sandiganbayan would
uphold the PLEBARA, there would no longer be any cause of complaint against her; if not, then
the situation becomes ripe for the determination of her failings.
The argument will not hold water. The incidents that have taken place subsequent to the
submission in court of the PLEBARA shows that the PLEBARA has been practically approved,
and that the only thing which remains to be done by the Sandiganbayan is to promulgate a
judgment imposing the proper sentence on the accused Major General Garcia based on his new
pleas to lesser offenses. On May 4, 2010, the Sandiganbayan issued a resolution declaring that
the change of plea under the PLEBARA was warranted and that it complied with jurisprudential
guidelines. The Sandiganbayan, thereafter, directed the accused Major General Garcia to
immediately convey in favor of the State all the properties, both real and personal, enumerated
therein. On August 11, 2010, the Sandiganbayan issued a resolution, which, in order to put into
effect the reversion of Major General Garcia's ill-gotten properties, ordered the corresponding
government agencies to cause the transfer of ownership of said properties to the Republic of
the Philippines. In the meantime, the Office of the Special Prosecutor (OSP) informed the
Sandiganbayan that an Order70 had been issued by the Regional Trial Court of Manila, Branch
21 on November 5, 2010 allowing the transfer of the accused's frozen accounts to the Republic
of the Philippines pursuant to the terms of the PLEBARA as approved by the Sandiganbayan.
Immediately after the OSP informed the Sandiganbayan that its May 4, 2010 Resolution had
been substantially complied with, Major General Garcia manifested71 to the Sandiganbayan on
November 19, 2010 his readiness for sentencing and for the withdrawal of the criminal

information against his wife and two sons. Major General Garcia's Motion to Dismiss,72 dated
December 16, 2010 and filed with the Sandiganbayan, reads:
1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is
the act of the others. Therefore, with the approval by the Honorable Court of the Plea
Bargaining Agreement executed by the Principal Accused, the charges against the Co-Accused
should likewise be dismissed since the charges against them are anchored on the same
charges against the Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead
guilty to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as
amended. Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount
of P 30,000.00.
The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an
administrative finding of liability against petitioner Barreras-Sulit. While the court's determination
of the propriety of a plea bargain is on the basis of the existing prosecution evidence on record,
the disciplinary authority's determination of the prosecutor's administrative liability is based on
whether the plea bargain is consistent with the conscientious consideration of the government's
best interest and the diligent and efficient performance by the prosecution of its public duty to
prosecute crimes against the State. Consequently, the disciplining authority's finding of
ineptitude, neglect or willfulness on the part of the prosecution, more particularly petitioner
Special Prosecutor Barreras-Sulit, in failing to pursue or build a strong case for the government
or, in this case, entering into an agreement which the government finds "grossly
disadvantageous," could result in administrative liability, notwithstanding court approval of the
plea bargaining agreement entered into.
Plea bargaining is a process in criminal cases whereby the accused and the prosecution work
out a mutually satisfactory disposition of the case subject to court approval.73 The essence of a
plea bargaining agreement is the allowance of an accused to plead guilty to a lesser offense
than that charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure
provides the procedure therefor, to wit:
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial,
the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea
of not guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not have sufficient evidence to
establish the guilt of the accused of the crime charged.74 However, if the basis for the allowance
of a plea bargain in this case is the evidence on record, then it is significant to state that in its
earlier Resolution75 promulgated on January 7, 2010, the Sandiganbayan had evaluated the
testimonies of twenty (20) prosecution witnesses and declared that "the conglomeration of

evidence presented by the prosecution is viewed by the Court to be of strong character that
militates against the grant of bail."
Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the
standard of judicial probable cause which is sufficient to initiate a criminal case."76 Hence, in
light of the apparently strong case against accused Major General Garcia, the disciplining
authority would be hard-pressed not to look into the whys and wherefores of the prosecution's
turnabout in the case.
The Court need not touch further upon the substantial matters that are the subject of the
pending administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to
the complete and effective resolution of the administrative case before the Office of the
President.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless,
failed to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the
law of the land. To recall, these cases involve two distinct issues: (a) the constitutionality of
Section 8(2) of the Ombudsman Act; and (b) the validity of the administrative action of removal
taken against petitioner Gonzales. While the Court voted unanimously to reverse the decision of
the OP removing petitioner Gonzales from office, it was equally divided in its opinion on the
constitutionality of the assailed statutory provision in its two deliberations held on April 17, 2012
and September 4, 2012. There being no majority vote to invalidate the law, the Court, therefore,
dismisses the challenge to the constitutionality of Section 8(2) of the Ombudsman Act in
accordance with Section 2(d), Rule 12 of the Internal Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No.
10-J-460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is
ordered REINSTATED with payment of backwages corresponding to the period of suspension
effective immediately, even as the Office of the Ombudsman is directed to proceed with the
investigation in connection with the above case against petitioner. InG.R. No. 196232,
We AFFIRM the continuation of OP-DC Case No. 11-B-003 against Special Prosecutor Wendell
Barreras-Sulit for alleged acts and omissions tantamount to culpable violation of the Constitution
and a betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of 1989.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-59234 September 30, 1982
TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE
TRANSPORTATION CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND
TRANSPORTATION,respondents.

MELENCIO-HERRERA, J.:
This Petition for "Certiorari, Prohibition and mandamus with Preliminary Injunction and
Temporary Restraining Order" filed by the Taxicab Operators of Metro Manila, Inc., Felicisimo
Cabigao and Ace Transportation, seeks to declare the nullity of Memorandum Circular No. 7742, dated October 10, 1977, of the Board of Transportation, and Memorandum Circular No. 52,
dated August 15, 1980, of the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation composed
of taxicab operators, who are grantees of Certificates of Public Convenience to operate taxicabs
within the City of Manila and to any other place in Luzon accessible to vehicular traffic.
Petitioners Ace Transportation Corporation and Felicisimo Cabigao are two of the members of
TOMMI, each being an operator and grantee of such certificate of public convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued Memorandum Circular
No. 77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure that only safe and
comfortable units are used as public conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has, time and again,
complained against, and condemned, the continued operation of old and
dilapidated taxis;
WHEREAS, in order that the commuting public may be assured of comfort,
convenience, and safety, a program of phasing out of old and dilapidated taxis
should be adopted;

WHEREAS, after studies and inquiries made by the Board of Transportation, the
latter believes that in six years of operation, a taxi operator has not only covered
the cost of his taxis, but has made reasonable profit for his investments;
NOW, THEREFORE, pursuant to this policy, the Board hereby declares that no
car beyond six years shall be operated as taxi, and in implementation of the
same hereby promulgates the following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and earlier are ordered
withdrawn from public service and thereafter may no longer be registered and
operated as taxis. In the registration of cards for 1978, only taxis of Model 1972
and later shall be accepted for registration and allowed for operation;
2. As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn from
public service and thereafter may no longer be registered and operated as taxis.
In the registration of cars for 1979, only taxis of Model 1973 and later shall be
accepted for registration and allowed for operation; and every year thereafter,
there shall be a six-year lifetime of taxi, to wit:
1980 Model 1974
1981 Model 1975, etc.
All taxis of earlier models than those provided above are hereby ordered
withdrawn from public service as of the last day of registration of each particular
year and their respective plates shall be surrendered directly to the Board of
Transportation for subsequent turnover to the Land Transportation Commission.
For an orderly implementation of this Memorandum Circular, the rules herein
shall immediately be effective in Metro-Manila. Its implementation outside MetroManila shall be carried out only after the project has been implemented in MetroManila and only after the date has been determined by the Board. 1
Pursuant to the above BOT circular, respondent Director of the Bureau of Land Transportation
(BLT) issued Implementing Circular No. 52, dated August 15, 1980, instructing the Regional
Director, the MV Registrars and other personnel of BLT, all within the National Capitol Region, to
implement said Circular, and formulating a schedule of phase-out of vehicles to be allowed and
accepted for registration as public conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year models over six
(6) years old are now banned from operating as public utilities in Metro Manila.
As such the units involved should be considered as automatically dropped as
public utilities and, therefore, do not require any further dropping order from the
BOT.
Henceforth, taxi units within the National Capitol Region having year models over
6 years old shall be refused registration. The following schedule of phase-out is
herewith prescribed for the guidance of all concerned:

Year Model

Automatic
Phase-Out
Year

1980

1974

1981

1975

1982

1976

1983

1977

etc.

etc.

Strict compliance here is desired. 2


In accordance therewith, cabs of model 1971 were phase-out in registration year 1978; those of
model 1972, in 1979; those of model 1973, in 1980; and those of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case No. 80-7553,
seeking to nullify MC No. 77-42 or to stop its implementation; to allow the registration and
operation in 1981 and subsequent years of taxicabs of model 1974, as well as those of earlier
models which were phased-out, provided that, at the time of registration, they are roadworthy
and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and Urgent Motion",
praying for an early hearing of their petition. The case was heard on February 20, 1981.
Petitioners presented testimonial and documentary evidence, offered the same, and manifested
that they would submit additional documentary proofs. Said proofs were submitted on March 27,
1981 attached to petitioners' pleading entitled, "Manifestation, Presentation of Additional
Evidence and Submission of the Case for Resolution." 3

On November 28, 1981, petitioners filed before the same Board a "Manifestation and Urgent
Motion to Resolve or Decide Main Petition" praying that the case be resolved or decided not
later than December 10, 1981 to enable them, in case of denial, to avail of whatever remedy
they may have under the law for the protection of their interests before their 1975 model cabs
are phased-out on January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the case, but was later
informed that the records of the case could not be located.
On December 29, 1981, the present Petition was instituted wherein the following queries were
posed for consideration by this Court:
A. Did BOT and BLT promulgate the questioned memorandum circulars in accord
with the manner required by Presidential Decree No. 101, thereby safeguarding
the petitioners' constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with the procedural
requirements imposed by Presidential Decree No. 101, would the implementation
and enforcement of the assailed memorandum circulars violate the petitioners'
constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable
classification and standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the power
4. To fix just and reasonable standards, classification, regulations, practices,
measurements, or service to be furnished, imposed, observed, and followed by
operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to follow in the exercise
of its powers:
Sec. 2. Exercise of powers. In the exercise of the powers granted in the
preceding section, the Board shag proceed promptly along the method of
legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion, may
require the cooperation and assistance of the Bureau of Transportation, the
Philippine Constabulary, particularly the Highway Patrol Group, the support
agencies within the Department of Public Works, Transportation and
Communications, or any other government office or agency that may be able to

furnish useful information or data in the formulation of the Board of any policy,
plan or program in the implementation of this Decree.
The Board may also can conferences, require the submission of position papers
or other documents, information, or data by operators or other persons that may
be affected by the implementation of this Decree, or employ any other suitable
means of inquiry.
In support of their submission that they were denied procedural due process, petitioners
contend that they were not caged upon to submit their position papers, nor were they ever
summoned to attend any conference prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway accorded the Board gives it
a wide range of choice in gathering necessary information or data in the formulation of any
policy, plan or program. It is not mandatory that it should first call a conference or require the
submission of position papers or other documents from operators or persons who may be
affected, this being only one of the options open to the Board, which is given wide discretionary
authority. Petitioners cannot justifiably claim, therefore, that they were deprived of procedural
due process. Neither can they state with certainty that public respondents had not availed of
other sources of inquiry prior to issuing the challenged Circulars. operators of public
conveyances are not the only primary sources of the data and information that may be desired
by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of
procedural due process. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA
307 (1972):
Pevious notice and hearing as elements of due process, are constitutionally
required for the protection of life or vested property rights, as well as of liberty,
when its limitation or loss takes place in consequence of a judicial or quasijudicial proceeding, generally dependent upon a past act or event which has to
be established or ascertained. It is not essential to the validity of general rules or
regulations promulgated to govern future conduct of a class or persons or
enterprises, unless the law provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is arbitrary and
oppressive because the roadworthiness of taxicabs depends upon their kind of maintenance
and the use to which they are subjected, and, therefore, their actual physical condition should
be taken into consideration at the time of registration. As public contend, however, it is
impractical to subject every taxicab to constant and recurring evaluation, not to speak of the fact
that it can open the door to the adoption of multiple standards, possible collusion, and even graft
and corruption. A reasonable standard must be adopted to apply to an vehicles affected
uniformly, fairly, and justly. The span of six years supplies that reasonable standard. The product
of experience shows that by that time taxis have fully depreciated, their cost recovered, and a
fair return on investment obtained. They are also generally dilapidated and no longer fit for safe
and comfortable service to the public specially considering that they are in continuous operation
practically 24 hours everyday in three shifts of eight hours per shift. With that standard of
reasonableness and absence of arbitrariness, the requirement of due process has been met.
On Equal Protection of the Law:

Petitioners alleged that the Circular in question violates their right to equal protection of the law
because the same is being enforced in Metro Manila only and is directed solely towards the taxi
industry. At the outset it should be pointed out that implementation outside Metro Manila is also
envisioned in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules herein
shall immediately be effective in Metro Manila. Its implementation outside Metro
Manila shall be carried out only after the project has been implemented in Metro
Manila and only after the date has been determined by the Board. 4
In fact, it is the understanding of the Court that implementation of the Circulars in Cebu City is
already being effected, with the BOT in the process of conducting studies regarding the
operation of taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this city,
compared to those of other places, are subjected to heavier traffic pressure and more constant
use. This is of common knowledge. Considering that traffic conditions are not the same in every
city, a substantial distinction exists so that infringement of the equal protection clause can hardly
be successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the overriding
consideration is the safety and comfort of the riding public from the dangers posed by old and
dilapidated taxis. The State, in the exercise, of its police power, can prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. It can
prohibit all things hurtful to comfort, safety and welfare of society. 5 It may also regulate property
rights. 6 In the language of Chief Justice Enrique M. Fernando "the necessities imposed by
public welfare may justify the exercise of governmental authority to regulate even if thereby
certain groups may plausibly assert that their interests are disregarded". 7
In so far as the non-application of the assailed Circulars to other transportation services is
concerned, it need only be recalled that the equal protection clause does not imply that the
same treatment be accorded all and sundry. It applies to things or persons Identically or
similarly situated. It permits of classification of the object or subject of the law provided
classification is reasonable or based on substantial distinction, which make for real differences,
and that it must apply equally to each member of the class. 8 What is required under the equal
protection clause is the uniform operation by legal means so that all persons under Identical or
similar circumstance would be accorded the same treatment both in privilege conferred and the
liabilities imposed. 9 The challenged Circulars satisfy the foregoing criteria.
Evident then is the conclusion that the questioned Circulars do not suffer from any constitutional
infirmity. To declare a law unconstitutional, the infringement of constitutional right must be clear,
categorical and undeniable.10
WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed. No costs.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 84818 December 18, 1989
PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,
vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION,respondents.
Rilloraza, Africa, De Ocampo & Africa for petitioner.
Victor de la Serna for respondent Alcuaz.

REGALADO, J.:
This case is posed as one of first impression in the sense that it involves the public utility
services of the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for
short) which is the only one rendering such services in the Philippines.
The petition before us seeks to annul and set aside an Order 1 issued by respondent
Commissioner Jose Luis Alcuaz of the National Telecommunications Commission (hereafter,
NTC), dated September 2, 1988, which directs the provisional reduction of the rates which may
be charged by petitioner for certain specified lines of its services by fifteen percent (15%) with
the reservation to make further reductions later, for being violative of the constitutional
prohibition against undue delegation of legislative power and a denial of procedural, as well as
substantive, due process of law.
The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic
Act No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and
operate in the Philippines, at such places as the grantee may select, station or stations and
associated equipment and facilities for international satellite communications." Under this
franchise, it was likewise granted the authority to "construct and operate such ground facilities
as needed to deliver telecommunications services from the communications satellite system
and ground terminal or terminals."
Pursuant to said franchise, petitioner puts on record that it undertook the following activities and
established the following installations:
1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay,
Rizal.

2. In 1968, earth station standard "A" antenna (Pinugay I) was established.


Pinugay I provided direct satellite communication links with the Pacific Ocean
Region (the United States, Australia, Canada, Hawaii, Guam, Korea, Thailand,
China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT
satellite.
3. In 1971, a second earth station standard "A" antenna(Pinugay III) was
established. Pinugay II provided links with the Indian Ocean Region (major cities
in Europe, Middle East, Africa, and other Asia Pacific countries operating within
the region) thru the Indian Ocean INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna (Pinugay III) was
established to temporarily assume the functions of Pinugay I and then Pinugay II
while they were being refurbished. Pinugay III now serves as spare or reserved
antenna for possible contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at
Clark Air Field, Pampanga as a television receive-only earth station which
provides the U.S. Military bases with a 24-hour television service.
6. In 1989, petitioner completed the installation of a third standard "A" earth
station (Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3
By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the
Philippines in the Agreement and the Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in
the Convention and the Operating Agreement of the International Maritime Satellite
Organization (INMARSAT) of 53 member nations, which two global commercial
telecommunications satellite corporations were collectively established by various states in line
with the principles set forth in Resolution 1721 (XVI) of the General Assembly of the United
Nations.
Since 1968, the petitioner has been leasing its satellite circuits to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils., Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus provided by petitioner enable said
international carriers to serve the public with indispensable communication services, such as

overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and
television standard conversion from European to American or vice versa.
Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the
then Public Service Commission, now respondent NTC. However, pursuant to Executive Order
No. 196 issued on June 17, 1987, petitioner was placed under the jurisdiction, control and
regulation of respondent NTC, including all its facilities and services and the fixing of rates.
Implementing said Executive Order No. 196, respondents required petitioner to apply for the
requisite certificate of public convenience and necessity covering its facilities and the services it
renders, as well as the corresponding authority to charge rates therefor.
Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an
application 4 for authority to continue operating and maintaining the same facilities it has been
continuously operating and maintaining since 1967, to continue providing the international
satellite communications services it has likewise been providing since 1967, and to charge the
current rates applied for in rendering such services. Pending hearing, it also applied for a
provisional authority so that it can continue to operate and maintain the above mentioned
facilities, provide the services and charge therefor the aforesaid rates therein applied for.
On September 16, 1987, petitioner was granted a provisional authority to continue operating its
existing facilities, to render the services it was then offering, and to charge the rates it was then
charging. This authority was valid for six (6) months from the date of said order. 5 When said
provisional authority expired on March 17, 1988, it was extended for another six (6) months, or
up to September 16, 1988.
The NTC order now in controversy had further extended the provisional authority of the
petitioner for another six (6) months, counted from September 16, 1988, but it directed the
petitioner to charge modified reduced rates through a reduction of fifteen percent (15%) on the
present authorized rates. Respondent Commissioner ordered said reduction on the following
ground:
The Commission in its on-going review of present service rates takes note that
after an initial evaluation by the Rates Regulation Division of the Common
Carriers Authorization Department of the financial statements of applicant, there
is merit in a REDUCTION in some of applicant's rates, subject to further
reductions, should the Commission finds (sic) in its further evaluation that more
reduction should be effected either on the basis of a provisional authorization or
in the final consideration of the case. 6
PHILCOMSAT assails the above-quoted order for the following reasons:
1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for
public service communications does not provide the necessary standards constitutionally
required, hence there is an undue delegation of legislative power, particularly the adjudicatory
powers of NTC;

2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the
same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the
questioned order violates procedural due process for having been issued without prior notice
and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus
constitutive of a violation of substantive due process.
I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing
for the creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order
No. 196, placing petitioner under the jurisdiction of respondent NTC, can it be inferred that
respondent NTC is guided by any standard in the exercise of its rate-fixing and adjudicatory
powers. While petitioner in its petition-in-chief raised the issue of undue delegation of legislative
power, it subsequently clarified its said submission to mean that the order mandating a
reduction of certain rates is undue delegation not of legislative but of quasi-judicial power to
respondent NTC, the exercise of which allegedly requires an express conferment by the
legislative body.
Whichever way it is presented, petitioner is in effect questioning the constitutionality of
Executive Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the
exercise of the power therein conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may be sustained only upon the
ground that some standard for its exercise is provided and that the legislature in making the
delegation has prescribed the manner of the exercise of the delegated power. Therefore, when
the administrative agency concerned, respondent NTC in this case, establishes a rate, its act
must both be non- confiscatory and must have been established in the manner prescribed by
the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes
unconstitutional. In case of a delegation of rate-fixing power, the only standard which the
legislature is required to prescribe for the guidance of the administrative authority is that the rate
be reasonable and just. However, it has been held that even in the absence of an express
requirement as to reasonableness, this standard may be implied. 7
It becomes important then to ascertain the nature of the power delegated to respondent NTC
and the manner required by the statute for the lawful exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among
others, to determine and prescribe rates pertinent to the operation of public service
communications which necessarily include the power to promulgate rules and regulations in
connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC
should be guided by the requirements of public safety, public interest and reasonable feasibility
of maintaining effective competition of private entities in communications and broadcasting
facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of
Transportation and Communications with control and supervision over respondent NTC, it is
specifically provided that the national economic viability of the entire network or components of
the communications systems contemplated therein should be maintained at reasonable rates.
We need not go into an in-depth analysis of the pertinent provisions of the law in order to

conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the
requirements of public safety, public interest, reasonable feasibility and reasonable rates, which
conjointly more than satisfy the requirements of a valid delegation of legislative power.
II. On another tack, petitioner submits that the questioned order violates procedural due process
because it was issued motu proprio, without notice to petitioner and without the benefit of a
hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is
a unilateral evaluation, but had petitioner been given an opportunity to present its side before
the order in question was issued, the confiscatory nature of the rate reduction and the
consequent deterioration of the public service could have been shown and demonstrated to
respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is
adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are
necessary and the absence thereof results in a violation of due process.
Respondents admit that the application of a policy like the fixing of rates as exercised by
administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the
administrative agency is legislative, notice and hearing are not required, but where an order
applies to a named person, as in the instant case, the function involved is
adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need
not be preceded by a hearing, not because it was issued pursuant to respondent NTC's
legislative function but because the assailed order is merely interlocutory, it being an incident in
the ongoing proceedings on petitioner's application for a certificate of public convenience; and
that petitioner is not the only primary source of data or information since respondent is currently
engaged in a continuing review of the rates charged.
We find merit in petitioner's contention.
In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical
classification as to when the rate-filing power of administrative bodies is quasi-judicial and when
it is legislative, thus:
Moreover, although the rule-making power and even the power to fix rates- when
such rules and/or rates are meant to apply to all enterprises of a given kind
throughout the Philippines-may partake of a legislative character, such is not the
nature of the order complained of. Indeed, the same applies exclusively to
petitioner herein. What is more, it is predicated upon the finding of fact-based
upon a report submitted by the General Auditing Office-that petitioner is making a
profit of more than 12% of its invested capital, which is denied by petitioner.
Obviously, the latter is entitled to cross-examine the maker of said report, and to
introduce evidence to disprove the contents thereof and/or explain or
complement the same, as well as to refute the conclusion drawn therefrom by the
respondent. In other words, in making said finding of fact, respondent performed
a function partaking of a quasi-judicial character, the valid exercise of which
demands previous notice and hearing.
This rule was further explained in the subsequent case of The Central Bank of the Philippines
vs. Cloribel, et al. 10to wit:

It is also clear from the authorities that where the function of the administrative
body is legislative, notice of hearing is not required by due process of law (See
Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If
the nature of the administrative agency is essentially legislative, the requirements
of notice and hearing are not necessary. The validity of a rule of future action
which affects a group, if vested rights of liberty or property are not involved, is not
determined according to the same rules which apply in the case of the direct
application of a policy to a specific individual) ... It is said in 73 C.J.S. Public
Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from
statute, the necessity of notice and hearing in an administrative proceeding
depends on the character of the proceeding and the circumstances involved. In
so far as generalization is possible in view of the great variety of administrative
proceedings, it may be stated as a general rule that notice and hearing are not
essential to the validity of administrative action where the administrative body
acts in the exercise of executive, administrative, or legislative functions; but
where a public administrative body acts in a judicial or quasi-judicial matter, and
its acts are particular and immediate rather than general and prospective, the
person whose rights or property may be affected by the action is entitled to notice
and hearing. 11
The order in question which was issued by respondent Alcuaz no doubt contains all the
attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains
exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although
patently superficial, that there is merit in a reduction of some of the rates charged- based on an
initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an
explanation as to what particular aspect or aspects of the financial statements warranted a
corresponding rate reduction. No rationalization was offered nor were the attending
contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen
percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better
position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it
charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies
attendant to a public service undertaking of such nature and magnitude. We are, therefore,
inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its
rates would adversely affect its operations and the quality of its service to the public considering
the maintenance requirements, the projects it still has to undertake and the financial outlay
involved. Notably, petitioner was not even afforded the opportunity to cross-examine the
inspector who issued the report on which respondent NTC based its questioned order.
At any rate, there remains the categorical admission made by respondent NTC that the
questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that
notice and hearing are not necessary since the assailed order is merely incidental to the entire
proceedings and, therefore, temporary in nature. This postulate is bereft of merit.
While respondents may fix a temporary rate pending final determination of the application of
petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory
procedural requirements of notice and hearing, as well as the requirement of reasonableness.
Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and

confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail
the applicability of a different rule of statutory procedure than would otherwise be applied to any
other order on the same matter unless otherwise provided by the applicable law. In the case at
bar, the applicable statutory provision is Section 16(c) of the Public Service Act which provides:
Section 16. Proceedings of the Commission, upon notice and hearing the
Commission shall have power, upon proper notice and hearing in accordance
with the rules and provisions of this Act, subject to the limitations and exceptions
mentioned and saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, ... which shall be imposed,
observed and followed thereafter by any public service; ...
There is no reason to assume that the aforesaid provision does not apply to respondent NTC,
there being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos.
546 and 196.
It is thus clear that with regard to rate-fixing, respondent has no authority to make such order
without first giving petitioner a hearing, whether the order be temporary or permanent, and it is
immaterial whether the same is made upon a complaint, a summary investigation, or upon the
commission's own motion as in the present case. That such a hearing is required is evident in
respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted
PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the
services it presently offers, and to charge the rates as reduced by them "under the condition that
"(s)ubject to hearing and the final consideration of the merit of this application, the Commission
may modify, revise or amend the rates ..." 12
While it may be true that for purposes of rate-fixing respondents may have other sources of
information or data, still, since a hearing is essential, respondent NTC should act solely on the
basis of the evidence before it and not on knowledge or information otherwise acquired by it but
which is not offered in evidence or, even if so adduced, petitioner was given no opportunity to
controvert.
Again, the order requires the new reduced rates to be made effective on a specified date. It
becomes a final legislative act as to the period during which it has to remain in force pending the
final determination of the case.13 An order of respondent NTC prescribing reduced rates, even
for a temporary period, could be unjust, unreasonable or even confiscatory, especially if the
rates are unreasonably low, since the utility permanently loses its just revenue during the
prescribed period. In fact, such order is in effect final insofar as the revenue during the period
covered by the order is concerned. Upon a showing, therefore, that the order requiring a
reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable return upon its
property, a declaration of its nullity becomes inductible, which brings us to the issue on
substantive due process.

III. Petitioner contends that the rate reduction is confiscatory in that its implementation would
virtually result in a cessation of its operations and eventual closure of business. On the other
hand, respondents assert that since petitioner is operating its communications satellite facilities
through a legislative franchise, as such grantee it has no vested right therein. What it has is
merely a privilege or license which may be revoked at will by the State at any time without
necessarily violating any vested property right of herein petitioner. While petitioner concedes
this thesis of respondent, it counters that the withdrawal of such privilege should nevertheless
be neither whimsical nor arbitrary, but it must be fair and reasonable.
There is no question that petitioner is a mere grantee of a legislative franchise which is subject
to amendment, alteration, or repeal by Congress when the common good so
requires. 14 Apparently, therefore, such grant cannot be unilaterally revoked absent a showing
that the termination of the operation of said utility is required by the common good.
The rule is that the power of the State to regulate the conduct and business of public utilities is
limited by the consideration that it is not the owner of the property of the utility, or clothed with
the general power of management incident to ownership, since the private right of ownership to
such property remains and is not to be destroyed by the regulatory power. The power to
regulate is not the power to destroy useful and harmless enterprises, but is the power to protect,
foster, promote, preserve, and control with due regard for the interest, first and foremost, of the
public, then of the utility and of its patrons. Any regulation, therefore, which operates as an
effective confiscation of private property or constitutes an arbitrary or unreasonable infringement
of property rights is void, because it is repugnant to the constitutional guaranties of due process
and equal protection of the laws. 15
Hence, the inherent power and authority of the State, or its authorized agent, to regulate the
rates charged by public utilities should be subject always to the requirement that the rates so
fixed shall be reasonable and just. A commission has no power to fix rates which are
unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness
comprehends such rates which must not be so low as to be confiscatory, or too high as to be
oppressive. 16
What is a just and reasonable rate is not a question of formula but of sound business judgment
based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good
sense, and a fair, enlightened and independent judgment. 18 In determining whether a rate is
confiscatory, it is essential also to consider the given situation, requirements and opportunities
of the utility. A method often employed in determining reasonableness is the fair return upon the
value of the property to the public utility. Competition is also a very important factor in
determining the reasonableness of rates since a carrier is allowed to make such rates as are
necessary to meet competition. 19
A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily
based on the initial evaluation made on the financial statements of petitioner, contrary to
respondent NTC's allegation that it has several other sources of information without, however,
divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on
how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial
statements, there is merit for a rate reduction without any elucidation on what implications and

conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how
the data reflected in the financial statements influenced its decision to impose a rate reduction.
On the other hand, petitioner may likely suffer a severe drawback, with the consequent
detriment to the public service, should the order of respondent NTC turn out to be unreasonable
and improvident. The business in which petitioner is engaged is unique in that its machinery and
equipment have always to be taken in relation to the equipment on the other end of the
transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of
machinery and equipment necessarily entails a major adjustment or innovation on the business
of petitioner. As pointed out by petitioner, any change in the sending end abroad has to be
matched with the corresponding change in the receiving end in the Philippines. Conversely, any
in the receiving end abroad has to be matched with the corresponding change in the sending
end in the Philippines. An inability on the part of petitioner to meet the variegations demanded
be technology could result in a deterioration or total failure of the service of satellite
communications.
At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and
renewing its machinery and equipment in order to keep up with the continuing charges of the
times and to maintain its facilities at a competitive level with the technological advances abroad.
There projected undertakings were formulated on the premise that rates are maintained at their
present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a
cessation of its business. While we concede the primacy of the public interest in an adequate
and efficient service, the same is not necessarily to be equated with reduced rates.
Reasonableness in the rates assumes that the same is fair to both the public utility and the
consumer.
Consequently, we hold that the challenged order, particularly on the issue of rates provided
therein, being violative of the due process clause is void and should be nullified. Respondents
should now proceed, as they should heretofore have done, with the hearing and determination
of petitioner's pending application for a certificate of public convenience and necessity and in
which proceeding the subject of rates involved in the present controversy, as well as other
matter involved in said application, be duly adjudicated with reasonable dispatch and with due
observance of our pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated
September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining
order issued under our resolution of September 13, 1988, as specifically directed against the
aforesaid order of respondents on the matter of existing rates on petitioner's present authorized
services, is hereby made permanent.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-12172

August 29, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J.:
Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendantsappellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of
1950, of the Municipality of Baao, Camarines Sur, for having constructed without a permit from
the municipal mayor a building that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F.
Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the
ordinance in question providing as follows:
SECTION 1. Any person or persons who will construct or repair a building should, before
constructing or repairing, obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for each building permit and
P1.00 for each repair permit issued.
SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall
make the violation liable to pay a fine of not less than P25 nor more than P50 or
imprisonment of not less than 12 days nor more than 24 days or both, at the discretion of
the court. If said building destroys the view of the Public Plaza or occupies any public
property, it shall be removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs.,
P. 3)
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son inlaw, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit
to construct a building adjacent to their gasoline station on a parcel of land registered in
Fajardo's name, located along the national highway and separated from the public plaza by a
creek (Exh. D). On January 16, 1954, the request was denied, for the reason among others that
the proposed building would destroy the view or beauty of the public plaza (Exh. E). On January

18, 1954, defendants reiterated their request for a building permit (Exh. 3), but again the request
was turned down by the mayor. Whereupon, appellants proceeded with the construction of the
building without a permit, because they needed a place of residence very badly, their former
house having been destroyed by a typhoon and hitherto they had been living on leased
property.
On February 26, 1954, appellants were charged before and convicted by the justice of the
peace court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants
appealed to the Court of First Instance, which affirmed the conviction, and sentenced appellants
to pay a fine of P35 each and the costs, as well as to demolish the building in question because
it destroys the view of the public plaza of Baao, in that "it hinders the view of travelers from the
National Highway to the said public plaza." From this decision, the accused appealed to the
Court of Appeals, but the latter forwarded the records to us because the appeal attacks the
constitutionality of the ordinance in question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that under it the mayor has
absolute discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up
any standard to guide or limit the mayor's action. No purpose to be attained by requiring the
permit is expressed; no conditions for its grant or refusal are enumerated. It is not merely a case
of deficient standards; standards are entirely lacking. The ordinance thus confers upon the
mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, and it
is a settled rule that such an undefined and unlimited delegation of power to allow or prevent an
activity, per se lawful, is invalid (People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71;
Schloss Poster Adv. Co. vs. Rock Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the discretion vested thereby in
the respondents. It prescribes no uniform rule upon which the special permission of the
city is to be granted. Thus the city is clothed with the uncontrolled power to capriciously
grant the privilege to some and deny it others; to refuse the application of one landowner
or lessee and to grant that of another, when for all material purposes, the two applying
for precisely the same privileges under the same circumstances. The danger of such an
ordinance is that it makes possible arbitrary discriminations and abuses in its execution,
depending upon no conditions or qualifications whatever, other than the unregulated
arbitrary will of the city authorities as the touchstone by which its validity is to be tested.
Fundamental rights under our government do not depend for their existence upon such a
slender and uncertain thread. Ordinances which thus invest a city council with a
discretion which is purely arbitrary, and which may be exercised in the interest of a
favored few, are unreasonable and invalid. The ordinance should have established a rule
by which its impartial enforcement could be secured. All of the authorities cited above
sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A.
587, 28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established
that municipal ordinances placing restrictions upon lawful conduct or the lawful use of
property must, in order to be valid, specify the rules and conditions to be observed in

such conduct or business; and must admit of the exercise of the privilege of all citizens
alike who will comply with such rules and conditions; and must not admit of the exercise,
or of an opportunity for the exercise, of any arbitrary discrimination by the municipal
authorities between citizens who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of
Rock Hill, et al., 2 SE (2d), pp. 394-395).
It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as
stated in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to
the appellant was predicated on the ground that the proposed building would "destroy the view
of the public plaza" by preventing its being seen from the public highway. Even thus interpreted,
the ordinance is unreasonable and oppressive, in that it operates to permanently deprive
appellants of the right to use their own property; hence, it oversteps the bounds of police power,
and amounts to a taking of appellants property without just compensation. We do not overlook
that the modern tendency is to regard the beautification of neighborhoods as conducive to the
comfort and happiness of residents. But while property may be regulated in the interest of the
general welfare, and in its pursuit, the State may prohibit structures offensive to the sight
(Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power,
permanently divest owners of the beneficial use of their property and practically confiscate them
solely to preserve or assure the aesthetic appearance of the community. As the case now
stands, every structure that may be erected on appellants' land, regardless of its own beauty,
stands condemned under the ordinance in question, because it would interfere with the view of
the public plaza from the highway. The appellants would, in effect, be constrained to let their
land remain idle and unused for the obvious purpose for which it is best suited, being urban in
character. To legally achieve that result, the municipality must give appellants just compensation
and an opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used
for any reasonable purpose goes, it is plain, beyond regulation and must be recognized
as a taking of the property. The only substantial difference, in such case, between
restriction and actual taking, is that the restriction leaves the owner subject to the burden
of payment of taxation, while outright confiscation would relieve him of that burden.
(Arverne Bay Constr. Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment.
(Sundlum vs. Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs.
Jacksonville, 133 So. 114).
Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such
property without just compensation. Use of property is an element of ownership therein.
Regardless of the opinion of zealots that property may properly, by zoning, be utterly
destroyed without compensation, such principle finds no support in the genius of our
government nor in the principles of justice as we known them. Such a doctrine shocks
the sense of justice. If it be of public benefit that property remain open and unused, then
certainly the public, and not the private individuals, should bear the cost of reasonable

compensation for such property under the rules of law governing the condemnation of
private property for public use. (Tews vs. Woolhiser (1933) 352 I11. 212, 185 N.E. 827)
(Emphasis supplied.)
The validity of the ordinance in question was justified by the court below under section 2243,
par. (c), of the Revised Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary character. The municipal
council shall have authority to exercise the following discretionary powers:
xxx

xxx

xxx

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may
be constructed or repaired within them, and issue permits for the creation or repair
thereof, charging a fee which shall be determined by the municipal council and which
shall not be less than two pesos for each building permit and one peso for each repair
permit issued. The fees collected under the provisions of this subsection shall accrue to
the municipal school fund.
Under the provisions of the section above quoted, however, the power of the municipal council
to require the issuance of building permits rests upon its first establishing fire limits in populous
parts of the town and prescribing the kinds of buildings that may be constructed or repaired
within them. As there is absolutely no showing in this case that the municipal council had either
established fire limits within the municipality or set standards for the kind or kinds of buildings to
be constructed or repaired within them before it passed the ordinance in question, it is clear that
said ordinance was not conceived and promulgated under the express authority of sec. 2243 (c)
aforequoted.
We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact,
and is therefore null and void. Hence, the conviction of herein appellants is reversed, and said
accused are acquitted, with costs de oficio. So ordered.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. Nos. 103501-03 February 17, 1997


LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:
Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena
and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as
the Resolution dated December 20. 1991 3 denying reconsideration, convicting them of
malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found
guilty beyond reasonable doubt Of having malversed the total amount of P55 Million of the
Manila International Airport Authority (MIAA) funds during their incumbency as General Manager
and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the
amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the

amount malversed. He shall also reimburse the Manila International Airport


Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta
are each sentenced to suffer the penalty of imprisonment of seventeen (17)
years and one (1) day of reclusion temporalas minimum and twenty (20) years
of reclusion temporal as maximum and for each of them to pay separately a fine
of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall
also reimburse jointly and severally the Manila International Airport Authority the
sum of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification
from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount
of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused he being charged in all three (3) cases. The amended informations in
criminal case nos. 11758, 11759 and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public
officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and accountable
for public funds belonging to the MIAA, they being the only ones authorized to
make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then
and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE MILLION
PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a
manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when
both accused well knew that there was no outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the above-mentioned manager's check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay. Philippines and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public
officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and accountable
for public funds belonging to the MIAA, they being the only ones authorized to
make withdrawals against the cash accounts of MIAA pursuant to its board
resolutions, conspiring, confederating and confabulating with each other, did then
and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE MILLION
PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a
manager.s check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when
both accused well knew that there was no outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the above-mentioned manager's check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public
officers, being then the General Manager and Acting Manager, Financial Services
Department, respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud
the government, take and misappropriate the amount of FIVE MILLION PESOS
(P5,000,000.00) from MIAA funds by applying for the issuance of a manager's
check for said amount in the name of accused Luis A. Tabuena chargeable
against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office
at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of
which said accused Tabuena would personally take care of, when both accused
well knew that there was no outstanding obligation of MIAA in favor of PNCC,
and after the issuance of the above-mentioned manager's check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and
converted the proceeds thereof to their personal use and benefit, to the damage
and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential
antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the president's
office and in cash what the MIAA owes the Philippine National Construction Corporation
(PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received
from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum
dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black
and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang

January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company
mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated
January 7, 1985 and duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND
MARCOS. 4
The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto
Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
For: The President
From: Minister Roberto V. Ongpin
Date: 7 January 1985
Subject: Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of
PNCC's Advances for MIA DevelopmentProject
May I request your approval of the attached recommendations of Minister Jesus
S. Hipolito for eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of Air Transport (BAT) and
Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12


Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was submitted to the Office of
the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for
the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million
in the following stages of approval/evaluation:
Approved by Price Escalation Committee
(PEC) but pended for lack of funds P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

Total P99.1 million

There has been no funding allocation for any of the above escalation claims due
to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and
yet residual amounts due to PNCC have not been paid, resulting in undue
burden to PNCC due to additional cost of money to service its obligations for this
contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment
of the repayment of PNCC's advances to the extent of P30 million corresponding
to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5
million has been officially recognized by MIADP consultants but could not be paid
due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount represents the excess of the gross
billings of PNCC of P98.4 million over the undeferred portion of the repayment of
advances of P63.9 million.
(Sgd.)
ROBE
RTO V.
ONGPI
N
Ministe
r5
In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help
of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even
date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the
depository branch of MIAA funds, to issue a manager's check for said amount payable to
Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the
cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery
thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on
a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at
Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money
received
Similar circumstances surrounded the second withdrawal/encashment and delivery of another
P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was
Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta
accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the
counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes
which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the

money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that
Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt,
dated January 30, 1986, reads:
Malacanang
Manila

January 30, 198


RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00
(Sgd.)
Fe
RoaGimen
ez
The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves,
"out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers
prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC
receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior
Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there
were no payments made to PNCC by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC
at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena
and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely
complying with the MARCOS Memorandum which ordered him to forward immediately to the
Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC,
and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his
part shared the same belief and so he heeded the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea
that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with
intentional malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully,


unlawfully, feloniously, and with intent to defraud the government, take and
misappropriated the amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this
connection, the Court's attention is directed to p. 17 of the December 20, 1991
Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the
Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the
P55 Million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted
through negligence or abandonment, some other person to take such public
funds. Having done so, Tabuena, by his own narration, has categorically
demonstrated that he is guilty of the misappropriation or malversation of P55
Million of public funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be
committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence
where the amended informations charged them with intentional malversation. 7
3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello
v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein
accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed,
in this wise:
. . . even on the putative assumption that the evidence against petitioner yielded
a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first
mode of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only
a modality in the perpetration of the felony. Even if the mode charged differs from
the mode proved, the same offense of malversation is involved and conviction
thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with
willful or intentional falsification can validly be convicted of falsification through
negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we


held in Quizon vs.Justice of the Peace of Bacolor. G.R. No. L-6641, July 28,
1995, but a distinct crime in our Penal Code, designated as a quasi offense in
our Penal Code, it may however be said that a conviction for the former can be
had under an information exclusively charging the commission of a willful
offense, upon the theory that the greater includes the lesser offense. This is the
situation that obtains in the present case. Appellant was charged with willful
falsification but from the evidence submitted by the parties, the Court of Appeals
found that in effecting the falsification which made possible the cashing of the
checks in question, appellant did not act with criminal intent but merely failed to
take proper and adequate means to assure himself of the identity of the real
claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful
but negligent. This is a case covered by the rule when there is a variance
between the allegation and proof, and is similar to some of the cases decided by
this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be
established to constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed
with imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the result has proven beneficial to
him. Certainly, having alleged that the falsification has been willful, it would be
incongruous to allege at the same time that it was committed with imprudence for
a charge of criminal intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated
rationale and arguments also apply to the felony of malversation, that is, that an
accused charged with willful malversation, in an information containing
allegations similar to those involved in the present case, can be validly convicted
of the same offense of malversation through negligence where the evidence
sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution
for malversation for it would negate criminal intent on the part of the accused. Thus, in the two
(2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the
Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences as, in law, is equivalent to criminal intent.
The maxim is actus non facit reum, nisi mens sit rea a crime is not committed
if the mind of the person performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana," 12 although this case involved falsification
of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a
crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the
criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal
intent in embezzlement is not based on technical mistakes as to the legal effect of a
transaction honestly entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose. 13 The accused may
thus always introduce evidence to show he acted in good faith and that he had no
intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously
shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of
the P55 Million solely by reason of such memorandum. From this premise flows the following
reasons and/or considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply
with the presidential directive, and to argue otherwise is something easier said than done.
Marcos was undeniably Tabuena's superior the former being then the President of the
Republic who unquestionably exercised control over government agencies such as the MIAA
and PNCC. 15 In other words, Marcos had a say in matters involving inter-government agency
affairs and transactions, such as for instance, directing payment of liability of one entity to
another and the manner in which it should be carried out. And as a recipient of such kind of a
directive coming from the highest official of the land no less, good faith should be read on
Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in
obedience to an order issued by a superior for some lawful purpose." 16 The subordinatesuperior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the
order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the
liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin
Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The
Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for
the MIAA Development Project, while at the same time recognizing some of the
PNCC's escalation billings which would result in making payable to PNCC the
amount of P34.5 million out of existing MIAA Project funds.
Thus:

"xxx xxx xxx


To allow PNCC to collect partially its billings, and in consideration
of ifs pending escalation billings, may we request for His
Excellency's approval for a deferment of repayment of PNCC's
advances to the extent of P30 million corresponding to about 30%
of P99.1 million in escalation claims of PNCC, of which P32.6
million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5
million out of existing MIA Project funds. This amount represents
the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion
thereof was still in the stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon
which President Marcos' Memo was based) they would only be for a sum of up to
P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay
P55 million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum
(Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to
be paid to the PNCC while Exhibit "2" authorized only P34.5
million. The order to withdraw the amount of P55 million exceeded
the approved payment of P34.5 million by P20.5 million. Min.
Ongpin's Memo of January 7, 1985 could not therefore serve as a
basis for the President's order to withdraw P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make
him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding
liability) and that Tabuena acted under the honest belief that the P55 million was a due
and demandable debt and that it was just a portion of a bigger liability to PNCC. This
belief is supported by defense witness Francis Monera who, on direct examination,
testified that:
ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on
page 2, marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our
billings to MIA as contract-owner of the project that the Philippine
National Construction Corporation constructed. These are billings
for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the
contract-owner that are supposed to take care of price increases,
sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand
from you that these are due and demandable?
A Yes, sir. 21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of
its illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in
brief, are as follows:
Accused was charged with falsification of commercial document. A mere
employee of R.J. Campos, he inserted in the commercial document alleged to
have been falsified the word "sold" by order of his principal. Had he known or
suspected that his principal was committing an improper act of falsification, he
would be liable either as a co-principal or as an accomplice. However, there
being no malice on his part, he was exempted from criminal liability as he was a
mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the
ordinary", did not comply with certain auditing rules and regulations such as those pointed out
by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above
P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31,
1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection,
the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were
no bills to support the disbursement. There were no certifications as to the
availability of funds for an unquestionably staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not
have the luxury of time to observe all auditing procedures of disbursement considering
the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the
directive that he forward to the President's Office the P55 Million in cash. Be that as it
may, Tabuena surely cannot escape responsibility for such omission. But since he was
acting in good faith, his liability should only be administrative or civil in nature, and not
criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in
acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation
after finding that he incurred a shortage in his cash accountability by reason of his
payment in good faith to certain government personnel of their legitimate wages leave
allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in Good faith mainly to government personnel,
some of them working at the provincial auditor's and the provincial treasurer's
offices And if those payments ran counter to auditing rules and regulations, they
did not amount to a criminal offense and he should only be held administratively
or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do
not amount to criminal appropriation, although they were made with insufficient vouchers
or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in
the revised Manual on Certificate of Settlement and Balances apparently made to
underscore Tabuena's personal accountability, as agency head, for MIAA funds would
all the more support the view that Tabuena is vulnerable to civil sanctions only Sections
29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of sanction
imposable on a superior officer who performs his duties with "bad faith, malice or gross
negligence"' and on a subordinate officer or employee who commits "willful or negligent
acts . . . which are contrary to law, morals, public policy and good customs even if he
acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the
PNCC, proceeding from the following definitions/concepts of "conversion":
"Conversion", as necessary element of offense of embezzlement, being the
fraudulent "appropriation to one's own use' of another's property which does not
necessarily mean to one's personal advantage but every attempt by one person
to dispose of the goods of another without right as if they were his own is
conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa
County, 64 p, 2d 904, 906, 179 Okl. 106)
At p. 207, Words
and Phrases,
Permanent Edition
9A.
Conversion is any interference subversive of the right of the owner of personal
property to enjoy and control it. The gist of conversion is the usurpation of the
owner 's right of property, and not the actual damages inflicted. Honesty of
purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At
page
168, id
.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of
another's property as if it were one's own. They presuppose that the thing has
been devoted to a purpose or use different from that agreed upon. To appropriate
to one's own use includes not only conversion to one's personal advantage but
every attempt to dispose of the property of another without right.
People vs.
Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or
legal justification, he became as guilty of malversation as if he had personally
taken them and converted them to his own use.
People vs. Luntao,
50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena
"to pay immediately the Philippine National Construction Corporation, thru this office the
sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he
delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the

Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then.
Furthermore, Tabuena had reasonable ground to believe that the President was entitled
to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive,
exercised supervision and control over government agencies. And the good faith of
Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in
strict compliance with the MARCOS Memorandum, was not at all affected even if it later
turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime
of malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and
there is reasonable ground to believe that the public officer to whom the fund had
been paid was entitled thereto, he is deemed to have acted in good faith, there is
no criminal intent, and the payment, if it turns out that it is unauthorized, renders
him only civilly but not criminally liable. 29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was
to siphon-out public money for the personal benefit of those then in power, still, no criminal
liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited
from the felonious scheme. In short, no conspiracy was established between Tabuena and the
real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v.
Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were
acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo",
therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by
the lower court of malversation after being unable to turn over certain amounts to the then
justice of the peace. It appeared, however, that said amounts were actually collected by his
secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums
were converted by his secretary Urbina without the knowledge and participation of Acebedo.
The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this
case, nor did such conspiracy appear in the case against Urbina. No guilty
knowledge of the theft committed by the secretary was shown on the part of the
appellant in this case, nor does it appear that he in any way participated in the
fruits of the crime. If the secretary stole the money in question without the
knowledge or consent of the appellant and without negligence on his part, then
certainly the latter can not be convicted of embezzling the same money or any
part thereof. 32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be
converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS,
but the checks were subsequently dishonored. Ang was acquitted by this Court after

giving credence to his assertion that the conversion of his collections into checks were
thru the machinations of one Lazaro Guinto, another MWSS collector more senior to
him. And we also adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert
cash collections into checks may be proof of poor judgment or too trusting a
nature insofar as a superior officer is concerned but there must be stronger
evidence to show fraud, malice, or other indicia of deliberateness in the
conspiracy cooked up with Marshall Lu. The prosecution failed to show that the
petitioner was privy to the conspirational scheme. Much less is there any proof
that he profited from the questioned acts. Any suspicions of conspiracy, no matter
how sincerely and strongly felt by the MWSS, must be converted into evidence
before conviction beyond reasonable doubt may be imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally
apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e.,
he acted in good faith when he, upon the directive of Tabuena, helped facilitate the
withdrawal of P5 Million of the P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face, the memorandum is
patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached from the realities then prevailing As aptly
observed by Mr Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era
and that the Judiciary was independent and fearless. We know it was not: even
the Supreme Court at that time was not free. This is an undeniable fact that we
can not just blink away. Insisting on the contrary would only make our sincerity
suspect and even provoke scorn for what can only be described as our incredible
credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the
accused's basic constitutional right to due process. "Respect for the Constitution", to borrow
once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a
violation of the rights of the accused." 35 While going over the records, we were struck by the
way the Sandiganbayan actively took part in the questioning of a defense witness and of the
accused themselves. Tabuena and Peralta may not have raised this as an error, there is
nevertheless no impediment for us to consider such matter as additional basis for a reversal
since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment
appealed from whether they are made the subject of assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of
PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes

only asked six (6) questions on cross-examination in the course of which the court interjected a
total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and
even more than the combined total of direct and cross-examination questions asked by the
counsels) After the defense opted not to conduct any re-direct examination, the court further
asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness
stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven
(67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14),
and more than double the total of direct examination and cross-examination questions which is
thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination
questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination,
propounded a total of forty-one (41) questions. 39
But more importantly, we note that the questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type
was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we
beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta.
(Questions from the Court are marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had
receivables from MIAA totalling P102,475,392.35, and although such receivables were largely
billings for escalation, they were nonetheless all due and demandable. What follows are the
cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits "7" and "7- a", the
items here represent mostly escalation billings. Were those
escalation billings properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer,
dated July 6, 1988, following up for payment of the balance of our
receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a
conference between the MIA and the PNCC for the determination
as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are
what we deemed are valid receivables And, in fact, we have been
following up for payment.
*Q This determination of the escalation costs was it accepted as
the correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your


Honor, but our company was able to get a document or a letter by
Minister Ongpin to President Marcos, dated January 7, 1985, with
a marginal note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract
and request for partial deferment of payment for MIA Development
Project, your Honor.
*Q It has nothing to do with the implementation of the escalation
costs?
A The details show that most of the accounts refer to our
escalations, your Honor.
*Q Does that indicate the computation for escalations were
already billed or you do not have any proof of that
A Our subsidiary ledger was based on billings to MIA and this
letter of Minister Ongpin appears to have confirmed our billings to
MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA an these escalation
billings?
A Based on records available as of today, the P102 million was
reduced to about P56.7 million, if my recollection is correct, your
Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since
Mr. Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think
the payments were made before the entry of our President, your
Honor. Actually, the payment was in the form of: assignments to
State Investment of about P23 million; and then there was P17.8
million application against advances made or formerly given; and
there were payments to PNCC of about P2.6 million and there
was a payment for application on withholding and contractual

stock of about P1 million; that summed up to P44.4 million all in


all. And you deduct that from the P102 million, the remaining
balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this
P102 million, only P2 million had been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of
accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but
the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by
which the basic account has been reduced. These reductions,
whether by adjustment or assignment or actual delivery of cash,
were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and
payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these
escalation billings. Do we get it from you that there was an
admission of these escalation costs as computed by you by MIA,
since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in
case or check, if there were payments made?
A The P44 million payments was in the form of assignments, your
Honor.

*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were
there any liquidations made by MIA against these escalation
billings?
A I have not reviewed the details of the record, your Honor. But
the ledger card indicates that there were collections on page 2 of
the Exhibit earlier presented. It will indicate that there were
collections shown by credits indicated on the credit side of the
ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the
MIA with respect to the escalation billings. Was the payment in
cash or just credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are
official receipts and I suppose these were payments in cash, your
Honor.
*Q Do you know how the manner of this payment in cash was
made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation
prior to December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44
million?
A Yes, your Honor, as subsequent settlements.

*Q After December 31, 1985?


A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of cash
payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985
in connection with or in case of cash payment, was the payment in
cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin
to the former President Marcos, did you say that letter concurs
with the escalation billings reflected in Exhibits "7" and "7-a"?
WITNESS
A The Company or the management is of the opinion that this
letter, a copy of which we were able to get, is a confirmation of the
acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas
the entries of escalation billings as appearing in Exhibit "7" are
dated June 30, 1985, would you still insist that the letter of
January 1985 confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of


December 31, 1985, it stood at P102 million after payments were
made as shown on the credit side of the ledger. I suppose hat the
earlier amount, before the payment was made, was bigger and
therefore I would venture to say that the letter of January 7, 1985
contains an amount that is part of the original contract account.
What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit "7" and "7-a", there
were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of
MIA?
WITNESS
A Yes, sir.
Q In 1986. from your records as appearing in Exhibit "7-a", there
were no payments made to PNCC by MIA for the months of
January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by
MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA

Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was
no payment of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an
assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or
of adjustment of account, or by assignment, or by offsets, when
did these payments begin?
A Per ledger card, there were payments in 1985, prior to
December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of
settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements P23
million is just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to
State Investment. In other words, State Investment bought the
credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State
Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have
not yet reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by
a collection letter by our President dated July 6, 1988, your Honor.
The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . . 41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in
cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs.

Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied
having used the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks
Mr. Tabuena, were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt
from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit "3" was
issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor What
happened is that, I did not notice the date placed by Mrs.
Gimenez.
Q Are you telling us that this Exhibit "3" was incorrectly dated
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the
receipt was dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?

A Yes, sir, I did not.


Q Do you know at whose instance this Exhibit "3" was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last
delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs.
Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you
see who typed this receipt?
A No, sir. What happened is that, she went to her room and when
she came out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know who typed that
receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated
January 30?

A Yes, sir, because I was there on January 31st.


Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit
"3"?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room,
she handed this receipt to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been
receiving letters from her also and when she requests for
something from me. Her writing is familiar to me.
So, when the Presiding Justice asked you as to how you knew
that this was the signature of Mrs. Gimenez and you answered
that you saw Mrs. Gimenez signed it, you were not exactly
truthful?
A What I mean is, I did not see her sign because she went to her
room and when she came out, she gave me that receipt, your
Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and
listen to it carefully. Because when I asked you, you said you saw
her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.

PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when
she gave you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55
million was made on January 30. Do we understand from you that
this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only
afterwards. This should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second
deliveries?
A Because I know that the delivery was not complete yet, your
Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55
million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also
present the accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the President's memorandum
marked Exhibit "1"? Or more precisely, who handed you this
memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for what purpose the money was
being asked?
A The money was in payment for the debt of the MIA Authority to
PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no
voucher prepared to cover such payment? In other words, why
was the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the
President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this
particular disbursement?
A I was just told to bring it to the Office of the President, your
Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office
of the President for obligations of the MIAA in payment of its
obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the
President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?

A Yes, your Honor.


*AJ DEL ROSARIO
Did you file any written protest with the manner with which such
payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed,
your Honor.
*Q Before receiving this memorandum Exhibit "1", did the former
President Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me
pay what I owe the PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed
by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's
obligation with PNCC, did you not on your own accord already
prepare the necessary papers and documents for the payment of
that obligation?

A He told me verbally in the telephone that the Order for the


payment of that obligation is forthcoming, your Honor. I will receive
it.
*Q Is this the first time you received such a memorandum from the
President?
A Yes, your Honor.
*Q And was that the last time also that you received such a
memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the
regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?
A All I know is that we owe PNCC the amount of P99.1 million,
your Honor. MIAA owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record,
cancelled by virtue of that payment?
A Based on the order to me by the former President Marcos
ordering me to pay that amount to his office and then the
mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.


*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly, to the PNCC
considering that you are the Manager of MIA at that time and the
PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacanang to pay PNCC
through the Office of the President, your Honor.
*Q Do you know the President or Chairman of the Board of
PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC incurred. Was it
through the President or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman
of the Board or President of the PNCC? In other words, who
signed the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who
signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the
obligations of BAT were transferred to MIAA. So the
accountabilities of BAT were transferred to MIAA and we are the
ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation
was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the
fact that this was not the regular course or Malacaang was not
the creditor?

A I saw nothing wrong with that because that is coming, from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you
agreed to deliver money in this amount through a mere receipt
from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial
knowledge that you have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent
authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did you ever work for the
government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968
as its Manager was your first employment ,with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other
subsequent concurrent positions in the government also?

A I was also the Chairman of the Games and Amusement Board,


your Honor.
*Q But you were not the executive or operating officer of the
Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement
Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy
that time?
A I was also Commissioner of the Game Fowl Commission, your
Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA
and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Came Fowl
Commission?
A Yes, your Honor.

*Q Who was running the commission at that time?


A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with
our Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: "Chairman or Manager, this
cannot be". And we learn later on that COA has reasons for its
procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient,
sometimes we consider it foolish, but we know there is reason in
this apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for
proper documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver
in cash, not to the creditor of the particular credit, and to be
delivered in armored cars to be acknowledged only by a receipt of
a personal secretary. After almost 18 years in the government
service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and
say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have
asked the COA for some guidance on this matter so that you will
do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell
that delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao
or you and Mr. Peralta signed requests for issuance of Manager's
checks and you were accommodated by the PNB Office at Nichols
without any internal documentation to justify your request for
Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will
win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that
time, would occasionally come with so-called expose, is that not
so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would
always come out with the real or imagined scandal in the
government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some
apprehension that some disloyal employees might leak you out
and banner headline it in some mosquito publications like the
Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of
fear. We are in the government and we in the government fear the
COA and we also fear the press. We might get dragged into press
releases on the most innocent thing. You believe that?

A Yes, your Honor.


*Q And usually our best defense is that these activities are
properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about
three (3) different trips from Nichols to Aguado usually late in the
day almost in movie style fashion. I mean, the money being
loaded in the trunk of your official car and then you had a back-up
truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard
with P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5
million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much
more with P5 million inside the trunk of your car, was that not a
nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . . 42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for
the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta]

was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million.
He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5
Million, but denied having misappropriated for his own benefit said amount or any portion
thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary
for you to co-sign with Mr. Tabuena the request for issuance of
Manager's check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of
MIAA, sir, and all withdrawals of funds should have my signature
because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always cosign with Mr. Tabuena in similar requests for the issuance of
Manager's checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the
request?
A Yes, sir, and I think the order is part of the exhibits and based on
that order, I co-signed in the request for the issuance of Manager's
check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr.
Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?

WITNESS
I have here a copy, your Honor. This was the order and it was
marked as exhibit "N".
PROS VIERNES
It was marked as Exhibit "M", your Honor.
Q How did you know there was an existing liability of MIAA in favor
of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared
the financial statement of MIAA as of December 31, 1985 and it
came to my attention that there was an existing liability of around
P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of
1986, sir.
Q Is it your usual practice to prepare the Financial Statement after
the end of the year within three (3) weeks after the end of the
year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month
because there will be a Board of Directors Meeting and the
Financial Statement of the prior month will be presented and
discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an
annual activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES

Q You made mention of a request for Escalation Clause by former


Minister Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I
was shown a copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister
Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you
withdrew the amount of P5 million from the PNB Extension Office
at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So
what I did was to bundle count the P5 million and it was placed in
two (2) peerless boxes.
Q Did you actually participate in the counting of the money by
bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s,
sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?


A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes,
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the
trunk of the car of Mr. Tabuena, I was left behind and I went back
to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed
5:00 o'clock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office
hours. But then I was there at around 4:00 o'clock and we started
counting at around 4:30 p.m. because they have to place it in a
room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the
afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the
peerless boxes and Mr. Tabuena left for Malacanang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish
the paper works in the office, sir.
Q So, even if it was already after 5:00 o'clock in the afternoon, you
still went back to your office at MIA?
A Yes, sir.
PROS VIERNES

That will be all, your Honor.


PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the
PNCC had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in
cash, it was not based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware
that all disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers.
But then, inasmuch as what we did was to prepare a request to
the PNB, then this can be covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal
Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher
presented in Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or
other accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher,


your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the
application for Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any
receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs.
Fe Roa Gimenez, your Honor. Inasmuch as the payment should
be made through the Office of the president, I accepted the receipt
given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary
supporting documents, vouchers, and use that receipt as a
supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Manager's check, no
disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that
was very close to the election held in that year, did you not
entertain any doubt that the amounts were being used for some
other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.

*AJ DEL ROSARIO


I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't
think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the
objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the
MIAA, did you not consider it proper that a check be issued only
after it is covered by a disbursement voucher duly approved by
the proper authorities ?
A Your Honor, what we did was to send a request for a Manager's
check to the PNB based on the request of Mr. Tabuena and the
order of Mr. Tabuena was based on the Order of President
Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA,
did you not think it proper to have this transaction covered by a
disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made
through cash vouchers, or even though Journal Vouchers, or even
through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you
allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because


that was the order of President Marcos to pay PNCC through the
Office of the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you
consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because
the order was to pay PNCC the amount of P5 million through the
Office of the President and it should be paid in cash, your Honor.
And at that time, I know for a fact also that there was an existing
P.D. wherein the President of the Republic of the Philippines can
transfer funds from one office to another and the PNCC is a quasi
government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of
that P.D. which you referred to?
A I am not aware of the motive of the President, but then since he
is the President of the Philippines, his order was to pay the PNCC
through the Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash
when ordinarily payment of an obligation of MIAA is supposed to
be paid in check?
A I caused the payment through the name of Mr. Tabuena
because that was the order of Mr. Tabuena and also he received
an order coming from the President of the Philippines at that time,
your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made in
the same journal?

In other words, really what you are telling us is that, a Journal


Voucher is to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is
proper, you are saying it is proper only because of the exceptional
nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say
that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness
stated earlier is that the Journal Voucher in this particular case
was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS

A The transaction was fully documented since we have the order


of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an
adequate basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded
liability of P27 million.
*Q we are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement
of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on
our existing liability of P27,931,000.00, inasmuch as we have that
liability and I was shown the order of President Marcos to pay P5
million through the Office of the President, I considered the order
of Mr. Luis Tabuena, the order of President Marcos and also the
existing liability of P27 million sufficient to pay the amount of P5
million. Inasmuch as there is also an escalation clause of P99.1
million, the payment of P5 million is fully covered by those existing
documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary
documents and at that time I know for a fact that there was this
existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must
listen to the question being asked and not to whatever you wanted
to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?

WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a
liability and I was shown the Order of President Marcos to pay
PNCC through his office, I feel that the order of the General
Manager, the order of President Marcos, and also the
memorandum of Minister Ongpin are sufficient to cause the
payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the Appropriation
Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the
President is authorized through a Presidential Decree to transfer
government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the
MIAA covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay
the amount is. . . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or
are you just throwing words at us in the hope that we will forget
what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA ate covered
by the Appropriations Act so that the payment of this debt would
be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?

ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was
not an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different
officers and different officials in any company either government or
private, which are supposed to check and balance each other, is it
not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made
by authority of not only one person alone so that nobody will
restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but

this disbursement is not proper and, therefore, I will not sign it"., if
in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your
judgment as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position
and because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such
amount was being disposed of?
A A written protest was not made, your Honor, but I called the
attention of Mr. Tabuena that since this payment was upon the
order of President Marcos, then I think as President he can do
things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare
a memorandum for the record that this was an extra-ordinary
transaction?
A I called the attention of Mr. Tabuena that this was an extraordinary transaction and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . . 43
This Court has acknowledged the right of a trial judge to question witnesses with a view to
satisfying his mind upon any material point which presents itself during the trial of a case over
which he presides. 44 But not only should his examination be limited to asking "clarificatory"
questions, 45 the right should be sparingly and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither interfering nor intervening in the conduct of the
trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression
that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for
the prosecution in proving the case against Tabuena and Peralta when the Justices cross-

examined the witnesses, their cross- examinations supplementing those made by Prosecutor
Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial
judge" requirement of due process was certainly denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual role of magistrate and advocate. In this connection,
the observation made in the Dissenting Opinion to the effect that the majority of this Court was
"unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial
portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but
more importantly to show that the court questions were in the interest of the prosecution and
which thus depart from that common standard of fairness and impartiality. In fact, it is very
difficult to be, upon review of the records, confronted with "numbers" without necessarily
realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example,
a new trial was required because the trial judge, as in this case, indulged in extensive
questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense
counsel's, 201. After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation
is of itself determinative. However, taking all this in conjunction with the long and
vigorous examination of the defendant himself by the judge, and the repeated
belittling by the judge of defendant's efforts to establish the time that Fine left the
pier, we fear that in its zeal for arriving at the facts the court here conveyed to the
jury too strong an impression of the court's belief in the defendant's probable guilt
to permit the jury freely to perform its own function of independent determination
of the facts. . . .
The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under
the standard employed in a non-jury trial where the judge is admittedly given more
leeway in propounding questions to clarify points and to elicit additional relevant
evidence. At the risk of being repetitious, we will amplify on this via some specific
examples. Based on the evidence on record, and on the admission of Tabuena himself,
the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience
to the Presidential directive. One Sandiganbayan Justice, however, hurled the following
questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that
was very close to the election held in that year, did you not
entertain any doubt that the amounts were being used for some
other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the
question on the ground that it is improper.
AJ DEL ROSARIO

I will withdraw the question.


PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't
think there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the
objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis
for this question. How then, can this be considered even relevant? What is the
connection between the payment made to the President's office and the then
forthcoming presidential "snap election"? In another instance, consider the following
questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made in
the same journal?
xxx xxx xxx
*Q In other words, really what you are telling us is that, a Journal
Voucher is to explain a transaction was otherwise not recorded.
xxx xxx xxx
*Q Therefore, when you said that a Journal Voucher here is
proper, you are saying it is proper only because of the exceptional
nature of the transactions?
xxx xxx xxx
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is . . .

*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say
that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness
stated earlier is that the Journal Voucher in this particular case
was supported, your Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS
A The transaction was fully documented since we have the order
of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an
adequate basis for the movement of money?
*Q We are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement
of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not
asking you whether or not there was valid obligation. We are not
asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
*PJ GARCHITORENA

When we ask questions and when we answer them, we must


listen to the question being asked and not to whatever you wanted
to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the Appropriation
Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the
MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or
are you just throwing words at us in the hope that we will forget
what the question is?
xxx xxx xxx
*Q Are you telling us that the debts incurred by MIAA are covered
by the Appropriations Act so that the payment of this debt would
be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was
not an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different in
officers and different officials in any company either government or

private, which are supposed to check and balance each other, is it


not?
*Q So that when disbursements of funds are made, they are made
by authority of not only one person alone so that nobody will
restrain him?
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it.", if
in your opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your
judgment as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position
and because you are a Certified Public Accountant? 47
How can these questions be considered clarificatory when they clearly border more on
cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction
between the two kinds of trial to justify the Sandiganbayan's active participation in the
examination of petitioners Tabuena and Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create
the impression that he is allied with the prosecution. 48
We doubt not that the sole motive of the learned judge was to ascertain the truth
of the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of
the law, he should always remember that he is as much judge in behalf of the
defendant accused of crime, and whose liberty is in jeopardy, as he is judge in
behalf of the state, for the purpose of safeguarding the interests of society. 49
Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to justify

the court in so doing. . . . This court, however, has more than once said that the
examination of witnesses is the more appropriate function of counsel, and the
instances are rare and the conditions exceptional which will justify the presiding
judge in conducting an extensive examination. It is always embarrassing for
counsel to object to what he may deem improper questions by the court. Then, in
conducting a lengthy examination, it would be almost impossible for the judge to
preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial,
and it is his duty to see that justice is done, he will usually not find it necessary to
conduct such examinations. The extent to which this shall be done must largely
be a matter of discretion, to be determined by the circumstances of each
particular case, but in so doing he must not forget the function of the judge and
assume that of an advocate. . . 50
While it is true that the manner in which a witness shall be examined is largely in
the discretion of the trial judge, it must be understood that we have not adopted
in this country the practice of making the presiding judge the chief inquisitor. It is
better to observe our time-honored custom of orderly judicial procedure, even at
the expense of occasional delays. . . . The judge is an important figure in the trial
of a cause, and while he has the right, and it is often his duty, to question
witnesses to the end that justice shall prevail, we can conceive of no other
reason, for him to take the trial of the cause out of the hands of counsel. 51
The examination of witnesses is the more appropriate function of counsel, and it
is believed the instances are rare and the conditions exceptional in a high degree
which will justify the presiding judge in entering upon and conducting an
extended examination of a witness, and that the exercise of a sound discretion
will seldom deem such action necessary or advisable. 52
He [the judge] may properly intervene in a trial of a case to promote expedition,
and prevent unnecessary waste of time, or to clear up some obscurity, but he
should bear in mind that his undue interference, impatience, or participation in,
the examination of witnesses, or a severe attitude on his part toward witnesses,
especially those who are excited or terrified by the unusual circumstances of a
trial, may tend to prevent the proper presentation of the cause, or the
ascertainment of the truth in respect thereto. 53
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a
fundamental and essential rule of special importance in criminal cases. . . 54
Our courts, while never unmindful of their primary duty to administer justice,
without fear or favor, and to dispose of these cases speedily and in as
inexpensive a manner as is possible for the court and the parties, should refrain
from showing any semblance of one-sided or more or less partial attitude in order
not to create any false impression in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to strive for the preservation of the people's
faith in our courts. 55
Time and again this Court has declared that due process requires no less than
the cold neutrality of an impartial judge. Bolstering this requirement, we have

added that the judge must not only be impartial but must also appear to be
impartial, to give added assurance to the parties that his decision will be just. The
parties are entitled to no less than this, as a minimum guaranty of due process. 56
We are well aware of the fear entertained by some that this decision may set a dangerous
precedent in that those guilty of enriching themselves at the expense of the public would be able
to escape criminal liability by the mere expedient of invoking "good faith". It must never be
forgotten, however, that we render justice on a case to case basis, always in consideration of
the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case,
we are mandated not only by the dictates of law but likewise of conscience to grant the same.
On the other hand, it does not follow that all those similarly accused will necessarily be
acquitted upon reliance on this case as a precedent. For the decision in this case to be a
precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal
must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual
violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate
attention. For the most dangerous precedent arises when we allow ourselves to be carried away
by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful.
In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb
to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an
innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M.
Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under
Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and
the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M.
ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary
of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.
RESOLUTION

EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7),
dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse
of discretion in determining that the return of former President Marcos and his family at the
present time and under present circumstances pose a threat to national interest and welfare and
in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos
died in Honolulu, Hawaii. In a statement, President Aquino said:
In the interest of the safety of those who will take the death of Mr. Marcos in
widely and passionately conflicting ways, and for the tranquility of the state and
order of society, the remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be it under this
administration or the succeeding one, shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following
major arguments:
1. to bar former President Marcos and his family from returning to the Philippines is to deny
them not only the inherent right of citizens to return to their country of birth but also the
protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily; and

3. there is no basis for barring the return of the family of former President Marcos. Thus,
petitioners prayed that the Court reconsider its decision, order respondents to issue the
necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene
M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the
Philippines, and enjoin respondents from implementing President Aquino's decision to bar the
return of the remains of Mr. Marcos, and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued that the motion for
reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts
that "the 'formal' rights being invoked by the Marcoses under the label 'right to return', including
the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country,
a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of
merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the burden is upon the
movants, petitioner herein, to show that there are compelling reasons to reconsider the decision
of the Court.
2. After a thorough consideration of the matters raised in the motion for reconsideration, the
Court is of the view that no compelling reasons have been established by petitioners to warrant
a reconsideration of the Court's decision.
The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed
the factual scenario under which the Court's decision was rendered. The threats to the
government, to which the return of the Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the
basis for the decision to bar their return when she called President Aquino "illegal," claiming that
it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared
that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine
Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive
power is vested, has unstated residual powers which are implied from the grant of executive
power and which are necessary for her to comply with her duties under the Constitution. The
powers of the President are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is so,
notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to
limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for
the result was a limitation of specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing
new. This is recognized under the U.S. Constitution from which we have patterned the
distribution of governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power shall be vested in a
President of the United States of America." In Alexander Hamilton's widely
accepted view, this statement cannot be read as mere shorthand for the specific
executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the
difference between the sweeping language of article II, section 1, and the
conditional language of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . . ." Hamilton
submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore
to be considered, as intended merely to specify the principal articles implied in
the definition of execution power; leaving the rest to flow from the general grant
of that power, interpreted in confomity with other parts of the Constitution...
In Myers v. United States, the Supreme Court accepted Hamilton's
proposition, concluding that the federal executive, unlike the Congress, could
exercise power from sources not enumerated, so long as not forbidden by the
constitutional text: the executive power was given in general terms, strengthened
by specific terms where emphasis was regarded as appropriate, and was limited
by direct expressions where limitation was needed. . ." The language of Chief
Justice Taft in Myers makes clear that the constitutional concept of inherent
power is not a synonym for power without limit; rather, the concept suggests only
that not all powers granted in the Constitution are themselves exhausted by
internal enumeration, so that, within a sphere properly regarded as one of
"executive' power, authority is implied unless there or elsewhere expressly
limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the President's implied or residual
powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained
analogy, the residual powers of the President under the Constitution should not be confused
with the power of the President under the 1973 Constitution to legislate pursuant to Amendment
No. 6 which provides:
Whenever in the judgment of the President (Prime Minister), there exists a grave
emergency or a threat or imminence thereof, or whenever the interim Batasang
Pambansa or the regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires immediate action, he
may, in order to meet the exigency, issue the necessary decrees, orders, or
letters of instruction, which shall form part of the law of the land,
There is no similarity between the residual powers of the President under the 1987 Constitution
and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First
of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment
No. 6 refers to a grant to the President of thespecific power of legislation.

4. Among the duties of the President under the Constitution, in compliance with his (or her) oath
of office, is to protect and promote the interest and welfare of the people. Her decision to bar the
return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and
under present circumstances is in compliance with this bounden duty. In the absence of a clear
showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this
decision, the Court will not enjoin the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 72670 September 12, 1986
SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY
CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B.,
FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA
FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ,
JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUOZ
PALMA. JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR.,
RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V.
SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS,
BERNARDO M. VILLEGAS, VICENTE JAYME, **,petitioners,
vs.
SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman,
and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE
BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN.
PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G.
CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN
KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO
MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT.
FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT.
RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT.
ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO
LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO,
*** , respondents.
Lupino Lazaro and Arturo M. de Castro for petitioners.
Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr.
Rodolfo U. Jimenez for respondent Brig. Gen. Custodio.
Ramon M. Bernaldo for respondent H. Gosuico.
Romulo Quimbo for respondent B. Vera Cruz.
Norberto J. Quisumbing for respondent P. Olivas.
Felix Solomon for respondent Col. A. Custodio.
Alfonso S. Cruz for B. Fernandez.

Edgardo B. Gayos for M. Pamaran.


RESOLUTION

TEEHANKEE, C.J.:
Last August 21st, our nation marked with solemnity and for the first time in freedom the third
anniversary of the treacherous assassination of foremost opposition leader former Senator
Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law
in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by
firing squad by a military tribunal for common offenses alleged to have been committed long
before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial
by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals
are admittedly not courts but mere instruments and subject to the control of the President as
created by him under the General Orders issued by him as Commander-in-Chief of the Armed
Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by
the President of the charges in a nationwide press conference held on August 24, 1971 when he
declared the evidence against Ninoy "not only strong but overwhelming ." 1 This followed the
Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal
Party candidates for the November, 1971 elections (when eight persons were killed and
practically all of the opposition candidates headed by Senator Jovito Salonga and many more
were seriously injured), and the suspension of the privilege of the writ of habeas corpus under
Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the
communists but the truth has never been known. But the then President never filed the said
charges against Ninoy in the civil courts.
Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo
successful heart surgery. After three years of exile and despite the regime's refusal to give him a
passport, he sought to return home "to strive for a genuine national reconciliation founded on
justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane
that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain
was smashed by a bullet fired point blank into the back of his head by a murderous assassin,
notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and
"from a military viewpoint, it (was) technically impossible to get inside (such) a cordon." 2 The
military investigators reported within a span of three hours that the man who shot Aquino
(whose identity was then supposed to be unknown and was revealed only days later as Rolando
Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him
up from his house on August 17, 1983) was a communist-hired gunman, and that the military
escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted
according to this version and continuously replayed it on all TV channels as if it were taken live
on the spot. The then President instantly accepted the military version and repeated it in a
nationally televised press conference that he gave late in the evening of August 22, 1983,
wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the
purpose was to eliminate Aquino, this was not the way to do it."

The national tragedy shocked the conscience of the entire nation and outraged the free world.
The large masses of people who joined in the ten-day period of national mourning and came out
in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief
for his martyrdom and their yearning for the truth, justice and freedom.
The then President was constrained to create a Fact Finding Board 3 to investigate "the
treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21,
1983 [which] has to all Filipinos become a national tragedy and national shame specially
because of the early distortions and exaggerations in both foreign and local media 4 so that all
right thinking and honest men desire to ventilate the truth through fare, independent and
dispassionate investigation by prestigious and free investigators." After two false starts, 5 he
finally constituted the Board 6 on October 22, 1983 which held 125 hearing days commencing
November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and
heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the
submission of their minority and majority reports to the President on October 23 and 24, 1984.
This was to mark another first anywhere in the world wherein the minority report was submitted
one day ahead by the ponentethereof, the chairman, who was received congenially and
cordially by the then President who treated the report as if it were the majority report instead of
a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution
through the legal system" and for trial in the Sandiganbayan which was better known as a graft
court; and the majority report of the four other members was submitted on the following day to
the then President who coldly received them and could scarcely conceal his instant rejection of
their report with the grim statement that "I hope you can live with your conscience with what you
have done."
The fact is that both majority and minority reports were one in rejecting the military version as
propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the
NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had
no subversive affiliations." They were in agreement that "only the soldiers in the staircase with
Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of
Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who
escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another,
gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the
mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product
of a military conspiracy, not a communist plot The only difference between the two reports is that
the majority report found all the twenty-six private respondents abovenamed in the title of the
case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and
therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando
Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude
nineteen of them and limit as plotters "the six persons who were on the service stairs while
Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot
could not have been planned and implemented without his intervention."
The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our
work lies in what will transpire in accordance with the action that the Office of the President may
thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the
epilogue (after warning the forces who adhere to an alien and intolerable political ideology

against unscrupulously using the report "to discredit our traditionally revered institutions"), that
"the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked
evil would be capable of doing." They wrote:
The task of the Board was clear and unequivocal. This task was not only to
determine the facts and circumstances surrounding the death of the late former
Senator. Of greater significance is the awesome responsibility of the Board to
uphold righteousness over evil, justice over injustice, rationality over irrationality,
humaneness over inhumanity. The task was indeed a painful test, the inevitable
result of which will restore our country's honored place among the sovereign
nations of the free world where peace, law and order, freedom, and justice are a
way of life.
More than any other event in contemporary Philippine history, the killing of the
late former Senator Aquino has brought into sharper focus, the ills pervading
Philippine society. It was the concretization of the horror that has been haunting
this country for decades, routinely manifested by the breakdown of peace and
order, economic instability, subversion, graft and corruption, and an increasing
number of abusive elements in what are otherwise noble institutions in our
country-the military and law enforcement agencies. We are, however, convinced
that, by and large, the great majority of the officers and men of these institutions
have remained decent and honorable, dedicated to their noble mission in the
service of our country and people.
The tragedy opened our eyes and for the first time confirmed our worst fears of
what unchecked evil would be capable of doing. As former Israeli Foreign
Minister Abba Eban observes. "Nobody who has great authority can be trusted
not to go beyond its proper limits." Social apathy, passivity and indifference and
neglect have spawned in secret a dark force that is bent on destroying the values
held sacred by freedom-loving people.
To assert our proper place in the civilized world, it is imperative that public
officials should regard public service as a reflection of human Ideals in which the
highest sense of moral values and integrity are strictly required.
A tragedy like that which happened on August 21, 1983, and the crisis that
followed, would have normally caused the resignation of the Chief of the Armed
Forces in a country where public office is viewed with highest esteem and
respect and where the moral responsibilities of public officials transcend all other
considerations.
It is equally the fact that the then President through all his recorded public acts and statements
from the beginning disdained and rejected his own Board's above findings and insisted on the
military version of Galman being Ninoy's assassin. In upholding this view that "there is no
involvement of anyone in his government in the assassination," he told David Briscoe (then AP
Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if
any member of my government were involved, I would have known somehow ... Even at a fairly

low level, I would have known. I know how they think. I know what they are thinking of." 7 He told
CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the
following:
CBS: But indeed there has been recent evidence that seems to
contradict earlier reports, namely, the recent evidence seems to
indicate that some of the guards may have been responsible (for
shooting Ninoy).
MARCOS: Well, you are of course wrong. What you have been
reading are the newspapers and the newspaper reports have
been biased. The evidence still proves that Galman was the killer.
The evidence also shows that there were intelligence reports
connecting the communist party to the killing. 8
In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of
absence upon release of the Board's majority report implicating him, he wrote that "(W)e are
even more aware, general, that the circumstances under which the board has chosen to
implicate you in its findings are fraught with doubt and great contradictions of opinion and
testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been
so accused by some members of the Board," and extended "My very best wishes to you and
your family for a speedy resolution of your case," 9 even as he announced that he would return
the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an
interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the
cases, he was quoted as saying that "as will probably be shown, those witnesses (against the
accused) are perjured witnesses." 10
It was against this setting that on November 11, 1985 petitioners Saturnina Galman and
Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine
(29) other petitioners, composed of three former Justices of this Court, five incumbent and
former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine
Bar and solid citizens of the community, filed the present action alleging that respondents
Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and
resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners
and the sovereign people of the Philippines to due process of law. They asserted that the
Tanodbayan did not represent the interest of the people when he failed to exert genuine and
earnest efforts to present vital and important testimonial and documentary evidence for the
prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of
the accused, and that their acts "clouded with the gravest doubts the sincerity of government to
find out the truth about the Aquino assassination." Petitioners prayed for the immediate
issuance of a temporary restraining order restraining the respondent Sandiganbayan from
rendering a decision on the merits in the pending criminal cases which it had scheduled on
November 20, 1985 and that judgment be rendered declaring a mistrial and nullifying the
proceedings before the Sandiganbayan and ordering a re-trial before an impartial tribunal by an
unbiased prosecutor. 10-a

At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary
restraining order enjoining respondent court from rendering a decision in the two criminal cases
before it, the Court resolved by nine-to-two votes 11 to issue the restraining order prayed for. The
Court also granted petitioners a five-day period to file a reply to respondents' separate
comments and respondent Tanodbayan a three-day period to submit a copy of his 84-page
memorandum for the prosecution as filed in the Sandiganbayan, the signature page of
which alone had been submitted to the Court as Annex 5 of his comment.
But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in
reverse, 12 resolved to dismiss the petition and to lift the temporary restraining order issued ten
days earlier enjoining the Sandiganbayan from rendering its decision. 13 The same Court
majority denied petitioners' motion for a new 5-day period counted from receipt of respondent
Tanodbayan's memorandum for the prosecution (which apparently was not served on them and
which they alleged was "very material to the question of his partiality, bias and prejudice" within
which to file a consolidated reply thereto and to respondents' separate comments, by an eightto-three vote, with Justice Gutierrez joining the dissenters. 14
On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal
did not indicate the legal ground for such action and urging that the case be set for a full hearing
on the merits because if the charge of partiality and bias against the respondents and
suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to
the reliefs demanded: The People are entitled to due process which requires an impartial
tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute
and convict because certain material evidence is suppressed by the prosecution and the
tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed
that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on
December 2, 1985.
On December 5, 1985, the Court required the respondents to comment on the motion for
reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled,
respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged,
declaring them innocent and totally absolving them of any civil liability. This marked another
unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando
Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and
evidence submitted by the prosecution. In opposition, respondents submitted that with the
Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On
February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack
of merit, with the writer and Justice Abad Santos maintaining our dissent.
On March 20, 1986, petitioners filed their motion to admit their second motion for
reconsideration attached therewith. The thrust of the second motion for reconsideration was the
startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as
reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the
then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo
Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases
against the 26 respondents accused and produce a verdict of acquittal.

On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration
and ordered the respondents to comment thereon. 15
Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986
that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by
the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the
petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel
Herrera, herein respondent never succumbed to any alleged attempts to influence his
actuations in the premises, having instead successfully resisted perceived attempts to exert
pressure to drop the case after preliminary investigation, and actually ordered the filing and
prosecution of the two (2) murder cases below against herein private party respondents." He
candidly admitted also in his memorandum: "There is not much that need be said about the
existence of pressure. That there were pressures can hardly be denied; in fact, it has never
been denied." 15-a He submitted that "even as he vehemently denies insinuations of any direct
or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases
below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of
the cases below, he would welcome such development so that any wrong that had been caused
may be righted and so that, at the very least the actuations of herein respondent in the premises
may be reviewed and reexamined, confident as he is that the end will show that he had done
nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan
Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of
the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that
justice could take its course."
Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9,
1986 stated that the trial of the criminal cases by them was valid and regular and decided on the
basis of evidence presented and the law applicable, but manifested that "if it is true that the
former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were
pressured into suppressing vital evidence which would probably alter the result of the trial,
Answering Respondents would not interpose any objection to the reopening of those cases, if
only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera
Cruz, in a separate comment, asserted that he passed no note to anyone; the note being
bandied about is not in his handwriting; he had nothing to do with the writing of the note or of
any note of any kind intended for any lawyer of the defense or even of the prosecution; and
requested for an investigation by this Court to settle the note passing issue once and for all.
Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations
in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and
Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder
case. He amplified his revelations, as follows:
1. AB INITIO, A. VERDICT OF ACQUITTAL!
Incidents during the preliminary investigation showed ominous signs that the fate
of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando
Galman on August 21, 1983 was doomed to an ignominous end. Malacanang
wanted dismissal-to the extent that a prepared resolution was sent to the

Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and


Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and
a resolution charging all the respondents as principals was forwarded to the
Tanodbayan on January 10, 1985.
2. MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL
At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former
President) summoned to Malacaang Justice Bernardo Fernandez (the
Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice)
and an the members of the Panel
Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and
Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former
President had a copy of the panel's signed resolution (charging all accused as
principals), evidently furnished him in advance, and with prepared notes on the
contents thereof.
The former President started by vehemently maintaining that Galman shot
Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to
remain silent was the more discreet posture when the former President became
emotional (he was quite sick then).
During a good part of the conference, the former President talked about Aquino
and the communists, lambasting the Agrava Board, specially the Legal Panel.
Shifting to the military he rumbled on such statements as: "It will be bloody . . .
Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not
know what to do". . . 'our understanding with Gen. Ramos is that his stint is only
temporary, but he is becoming ambitious "the boys were frantic when they heard
that they will be charged in court, and wig be detained at city jail."
From outright dismissal, the sentiment veered towards a more pragmatic
approach. The former President more or less conceded that for political and legal
reasons all the respondents should be charged in court, Politically, as it will
become evident that the government was serious in pursuing the case towards
its logical conclusion, and thereby ease public demonstrations; on the other
hand, legally, it was perceived that after (not IF) they are acquitted, double
jeopardy would inure. The former President ordered then that the resolution be
revised by categorizing the participation of each respondent.
In the matter of custody of the accused pendente lite the Coordinator was
ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and
Director Jolly Bugarin to put on record that they had no place in their respective
institutions. The existence of PD No. 1950 (giving custody to commanding
officers of members of AFP charged in court) was never mentioned.

It was decided that the presiding justice (First Division) would personally handle
the trial, and assurance was made by him that it would be finished in four to six
months, pointing out that, with the recent effectivity of the New Rules on Criminal
Procedure, the trial could be expedited.
Towards the end of the two-hour meeting and after the script had been tacitly
mapped out, the former President uttered: "Mag moro-moro na lang kayo."
The parting words of the former President were: "Thank you for your cooperation.
I know how to reciprocate."
While still in the palace grounds on the way out, the undersigned manifested his
desire to the Tanodbayan to resign from the panel, or even the office. This, as
well as other moves to this effect, had always been refused. Hoping that with
sufficient evidence sincerely and efficiently presented by the prosecution, all
involves in the trial would be conscience-pricked and realize the futility and
injustice of proceeding in accordance with the script, the undersigned opted to
say on.
Herrera further added details on the "implementation of the script," such as the holding of a
"make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan
at noon of January 23, 1985, while there were no members of the media; the installation of TV
monitors directly beamed to Malacanang; the installation of a "war room" occupied by the
military; attempts to direct and stifle witnesses for the prosecution; the suppression of the
evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the
suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier
disregard of his plea that it "should not decide these cases on the merits without first making a
final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the declaration
that "the Court finds all accused innocent of the crimes charged in the two informations, and
accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years
that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only
occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself
with the motion for reconsideration and likewise prayed that the proceedings in the
Sandiganbayan and its decision be declared null and void."
New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration
of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of
suppression of evidence and collusion. He submitted that this would require reception of
evidence by a Court-appointed or designated commissioner or body of commissioners (as was
done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No.
70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the
double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal
would no longer be a valid basis for a double jeopardy claim.
Respondents-accused opposed the second motion for reconsideration and prayed for its denial.
Respondent Olivas contended that the proper step for the government was to file a direct action

to annul the judgment of acquittal and at a regular trial present its evidence of collusion and
pressures.
As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the
issues had become moot and academic because of the rendition of the Sandiganbayan's
judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for
respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment
of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the
burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence
the cause of the nullity.
After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June
5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice
Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros
German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and
documentary, of the charges of collusion and pressures and relevant matters, upon prior notice
to all parties, and to submit their findings to this Court for proper disposition. The Commission
conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the
said last day, respondents announced in open hearing that they decided to forego the taking of
the projected deposition of former President Marcos, as his testimony would be merely
corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez.
On July 31, 1986, it submitted its extensive 64-page Report 16wherein it discussed fully the
evidence received by it and made a recapitulation of its findings in capsulized form, as follows:
1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special
Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special
Prosecutor Tamayo, was originally of the view that all of the twenty-six (26)
respondents named in the Agrava Board majority report should all be charged as
principals of the crime of double murder for the death of Senator Benigno Aquino
and Rolando Galman.
2. When Malacanang learned of the impending filing of the said charge before
the Sandiganbayan, the Special Investigating Panel having already prepared a
draft Resolution recommending such course of action, President Marcos
summoned Justice Fernandez, the tree members of the Special Investigating
Panel, and justice Pamaran to a conference in Malacanang in the early evening
of January 10, 1985.
3. In said conference, President Marcos initially expressed his disagreement with
the recommendation of the Special Investigating Panel and disputed the findings
of the Agrava Board that it was not Galman who shot Benigno Aquino.
4. Later in the conference, however, President Marcos was convinced of the
advisability of filing the murder charge in court so that, after being acquitted as
planned, the accused may no longer be prosecuted in view of the doctrine of
double jeopardy.

5. Presumably in order to be assured that not all of the accused would be denied
bail during the trial, considering that they would be charged with capital offenses,
President Marcos directed that the several accused be "categorized" so that
some of them would merely be charged as accomplices and accessories.
6. In addition to said directive, President Marcos ordered that the case be
handled personally by Justice Pamaran who should dispose of it in the earliest
possible time.
7. The instructions given in the Malacanang conference were followed to the
letter; and compliance therewith manifested itself in several specific instances in
the course of the proceedings, such as, the changing of the resolution of the
special investigating panel, the filing of the case with the Sandiganbayan and its
assignment to Justice Pamaran, suppression of some vital evidence, harassment
of witnesses, recantation of witneses who gave adverse testimony before the
Agrava Board, coaching of defense counsels, the hasty trial, monitoring of
proceedings, and even in the very decision rendered in the case.
8. That that expression of President Marcos' desire as to how he wanted the
Aquino-Galman case to be handled and disposed of constituted sufficient
pressure on those involved in said task to comply with the same in the
subsequent course of the proceedings.
9. That while Justice Pamaran and Justice Fernandez manifested no revulsion
against complying with the Malacaang directive, justice Herrera played his role
with manifestly ambivalent feelings.
10. Sufficient evidence has been ventilated to show a scripted and predetermined manner of handling and disposing of the Aquino-Galman murder
case, as stage-managed from Malacaang and performed by willing dramatis
personnae as well as by recalcitrant ones whipped into line by the omnipresent
influence of an authoritarian ruler.
The Commission submitted the following recommendation.
Considering the existence of adequate credible evidence showing that the
prosecution in the Aquino-Galman case and the Justices who tried and decided
the same acted under the compulsion of some pressure which proved to be
beyond their capacity to resist, and which not only prevented the prosecution to
fully ventilate its position and to offer all the evidences which it could have
otherwise presented, but also predetermined the final outcome of the case, the
Commission is of the considered thinking and belief, subject to the better opinion
and judgment of this Honorable Court that the proceedings in the said case have
been vitiated by lack of due process, and hereby respectfully recommends that
the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases
Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted.

The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report
and required them to submit their objections thereto. It thereafter heard the parties and their
objections at the hearing of August 26, 1986 and the matter was submitted for the Court's
resolution.
The Court adopts and approves the Report and its findings and holds on the basis thereof and
of the evidence received and appreciated by the Commission and duly supported by the facts of
public record and knowledge set forth above and hereinafter, that the then President (code
named Olympus) had stage-managed in and from Malacanang Palace "a scripted and predetermined manner of handling and disposing of the Aquino-Galman murder case;" and that
"the prosecution in the Aquino Galman case and the Justices who tried and decided the same
acted under the compulsion of some pressure which proved to be beyond their capacity to
resist', and which not only prevented the prosecution to fully ventilate its position and to offer all
the evidences which it could have otherwise presented, but also pre-determined the final
outcome of the case" of total absolution of the twenty-six respondents accused of all criminal
and civil liability.
The Court finds that the Commission's Report (incorporated herein by reference) and findings
and conclusions are duly substantiated by the evidence and facts of public record. Composed of
distinguished members of proven integrity with a combined total of 141 years of experience in
the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial
and appellate courts), experts at sifting the chaff from the grain, 17 the Commission properly
appraised the evidences presented and denials made by public respondents, thus:
The desire of President Marcos to have the Aquino-Galman case disposed of in a
manner suitable to his purposes was quite understandable and was but to be
expected. The case had stirred unprecedented public outcry and wide
international attention. Not invariably, the finger of suspicion pointed to those
then in power who supposedly had the means and the most compelling motive to
eliminate Senator Aquino. A day or so after the assassination, President Marcos
came up with a public statement aired over television that Senator Aquino was
killed not by his military escorts, but by a communist hired gun. It was, therefore,
not a source of wonder that President Marcos would want the case disposed of in
a manner consistent with his announced theory thereof which, at the same time,
would clear his name and his administration of any suspected guilty participation
in the assassination.
The calling of the conference was undoubtedly to accomplish this purpose. . . .
President Marcos made no bones to conceal his purpose for calling them. From
the start, he expressed irritation and displeasure at the recommendation of the
investigating panel to charge all of the twenty-six (26) respondents as principals
of the crime of double murder. He insisted that it was Galman who shot Senator
Aquino, and that the findings of the Agrava Board were not supported by
evidence that could stand in court. He discussed and argued with Justice Herrera
on this point. Midway in the course of the discussion, mention was made that the
filing of the charge in court would at least mollify public demands and possibly

prevent further street demonstrations. It was further pointed out that such a
procedure would be a better arrangement because, if the accused are charged in
court and subsequently acquitted, they may claim the benefit of the doctrine of
double jeopardy and thereby avoid another prosecution if some other witnesses
shall appear when President Marcos is no longer in office.
xxx xxx xxx
After an agreement was reached as to filing the case, instead of dismissing it, but
with some of the accused to be charged merely as accomplices or accessories,
and the question of preventive custody of the accused having thereby received
satisfactory solution, President Marcos took up the matter of who would try the
case and how long it would take to be finished.
According to Justice Herrera, President Marcos told Justice Pamaran 'point
blank' to personally handle the case. This was denied by Justice Pamaran. No
similar denial was voiced by Justice Fernandez in the entire course of his twoday testimony. Justice Pamaran explained that such order could not have been
given inasmuch as it was not yet certain then that the Sandiganbayan would try
the case and, besides, cases therein are assigned by raffle to a division and not
to a particular Justice thereof.
It was preposterous to expect Justice Pamaran to admit having received such
presidential directive. His denial, however, falls to pieces in the light of the fact
that the case was indeed handled by him after being assigned to the division
headed by him. A supposition of mere coincidence is at once dispelled by the
circumstance that he was the only one from the Sandiganbayan called to the
Malacanang conference wherein the said directive was given. . . .
The giving of such directive to Justice Pamaran may also be inferred from his
admission that he gave President Marcos the possible time frame when asked as
to how long it would take him to finish the case.
The testimony of Justice Herrera that, during the conference, and after an
agreement was reached on filing the case and subsequently acquitting the
accused, President Marcos told them "Okay, mag moro-moro na lamang
kayo;" and that on their way out of the room President Marcos expressed his
thanks to the group and uttered "I know how to reciprocate," did not receive any
denial or contradiction either on the part of justice Fernandez or justice Pamaran.
(No other person present in the conference was presented by the respondents.
Despite an earlier manifestation by the respondents of their intention to present
Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any
reason having been given therefor.)
The facts set forth above are all supported by the evidence on record. In the
mind of the Commission, the only conclusion that may be drawn therefrom is that
pressure from Malacanang had indeed been made to bear on both the court and

the prosecution in the handling and disposition of the Aquino-Galman case. The
intensity of this pressure is readily deductible from the personality of the one who
exerted it, his moral and official ascendancy over those to whom his instructions
were directed, the motivation behind such instructions, and the nature of the
government prevailing at that time which enabled, the then head of state to
exercise authoritarian powers. That the conference called to script or stagemanage the prosecution and trial of the Aquino-Galman case was considered as
something anomalous that should be kept away from the public eye is shown by
the effort to assure its secrecy. None but those directly involved were caned to
attend. The meeting was held in an inner room of the Palace. Only the First Lady
and Presidential Legal Assistant Justice Lazaro were with the President. The
conferees were told to take the back door in going to the room where the meeting
was held, presumably to escape notice by the visitors in the reception hall waiting
to see the President. Actually, no public mention alas ever made of this
conference until Justice Herrera made his expose some fifteen (15) months later
when the former president was no longer around.
President Marcos undoubtedly realized the importance of the matter he wanted
to take up with the officials he asked to be summoned. He had to do it personally,
and not merely through trusted assistants. The lack of will or determination on
the part of Justice Fernandez and Justice Pamaran to resist the presidential
summons despite their realization of its unwholesome implications on their
handling of the celebrated murder case may be easily inferred from their
unquestioned obedience thereto. No effort to resist was made, despite the
existence of a most valid reason to beg off, on the lame excuses that they went
there out of "curiosity," or "out of respect to the Office of the President," or that it
would be 'unbecoming to refuse a summons from the President.' Such frame of
mind only reveals their susceptibility to presidential pressure and lack of capacity
to resist the same. The very acts of being summoned to Malacanang and their
ready acquiescence thereto under the circumstances then obtaining, are in
themselves pressure dramatized and exemplified Their abject deference to
President Marcos may likewise be inferred from the admitted fact that, not having
been given seats during the two-hour conference (Justice Fernandez said it was
not that long, but did not say how long) in which President Marcos did the talking
most of the time, they listened to him on their feet. Verily, it can be said that any
avowal of independent action or resistance to presidential pressure became
illusory from the very moment they stepped inside Malacanang Palace on
January 10, 1985. 18
The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on
whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such
pressure, as may be gauged by their subsequent actuations in their respective handling of the
case." It duly concluded that "the pressure exerted by President Marcos in the conference held
on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as
manifested in several specific incidents and instances it enumerated in the Report under the
heading of "Manifestations of Pressure and Manipulation."

Suffice it to give hereinbelow brief excerpts:


1. The changing of the original Herrera panel draft Resolution charging all the twenty-six
accused as principals by conspiracy by categorizing and charging 17 as principals, Generals
Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending
bail for the latter two categories: "The categorization may not be completely justified by saying
that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the
accused be charged as principals. The majority of the Agrava Board found the existence of
conspiracy and recommended that all of the accused be charged accordingly. Without going into
the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance
with the standard practice of the prosecution to charge accused with the most serious possible
offense or in the highest category so as to prevent an incurable injustice in the event that the
evidence presented in the trial will show his guilt of the graver charge, the most logical and
practical course of action should have been, as originally recommended by the Herrera panel, to
charge all the accused as principals. As it turned out, Justice Fernandez readily opted for
categorization which, not surprisingly, was in consonance with the Malacaang instruction." It is
too much to attribute to coincidence that such unusual categorization came only after the then
President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking
the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself,
admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view
was in conformity with that of the Special Investigating Panel to charge all of the twenty-six (26)
respondents as principals of the crime of double murder." 19 As the Commission further noted,
"Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January
10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a
press conference on the afternoon of said date which did not go through due to the summons
for them to go to Malacanang in the early evening of said date." 20
2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a
party's case is as strong as the evidence it can present, unmistakable and persistent efforts
were exerted in behalf of the accused to weaken the case of the prosecution and thereby
assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were
sought to be suppressed, and some were indeed prevented from being ventilated. Adverse
witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to
testify in a manner favorable to the defense."
The Report specified the ordeals of the prosecution witnesses: 21 Cesar Loterina, PAL
employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the
Fact Finding Board and had to be discarded as prosecution witnesses before at the trial.
WitnessesViesca and Raas who also testified before the Board "disappeared all of a sudden
and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi
Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and
described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was
not even allowed to return to Manila on August 20, 1984 to participate in the first death
anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next
plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the
Japanese police in accordance with their law and Wakamiya claimed before the Commission
that the English transcription of his testimony, as prepared by an official of the Philippine

Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although
there was no clear showing of the discrepancy from the original transcription which was in
Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to
testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men
who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by
immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's
request to let him stay until he could testify the following Monday (August 26th). In the case of
principal eyewitness Rebecca Quijano, the Commission reported that
... Undoubtedly in view of the considerable significance of her proposed
testimony and its unfavorable effect on the cause of the defense, the efforts
exerted to suppress the same was as much as, if not more than those in the case
of Wakamiya. ... She recounted that she was in constant fear of her life, having
been hunted by armed men; that their house in Tabaco, Albay was ransacked,
her family harassed by the foreclosure of the mortgage on their house by the
local Rural Bank, and ejected therefrom when she ignored the request of its
manager to talk with her about her proposed testimony; that a certain William
Farias offered her plane tickets for a trip abroad; that Mayor Rudy Farias of
Laoag City kept on calling her sister in the United States to warn her not to
testify; that, later, Rudy and William Farias offered her two million pesos
supposedly coming from Bongbong Marcos, a house and lot in Baguio, the
dropping of her estafa case in Hongkong, and the punishment of the persons
responsible for the death of her father, if she would refrain from testifying.
It is a matter of record, however, that despite such cajolery and harassments, or
perhaps because of them, Ms. Quijano eventually testified before the
Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure
expressed by Olympus at justice Herrera's going out of his way to make Ms.
Quijano to testify, and for his refusal to honor the invitation to attend the birthday
party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony
on May 2, 1985. The insiduous attempts to tamper with her testimony, however,
did not end with her taking the witness stand. In the course of her testimony
several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who
cross-examined her, one of which suggested that she be asked more questions
about Dean Narvasa who was suspected of having coached her as to what to
declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony,
a power brownout occurred; which lasted for about twenty minutes, throwing the
courtroom into darkness, and making most of those present to scamper for
safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to
leave the courtroom. It was verified that the brownout was limited to the building
housing the Sandiganbayan, it not having affected the nearby Manila City Hall
and the Finance Building. Justice Herrera declared that the main switchboard of
the Sandiganbayan electrical system was located beside the room occupied by
Malacaang people who were keeping track of the proceedings.
Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the
two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two

weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality
girl) who jotted down the number of the car that took them away, also disappeared. On January
29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando
Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been
missing since then, despite his attempts to find any of them. According to him, "nobody was
looking for these five persons because they said Marcos was in Power [despite his appeal to the
Minister of National Defense to locate them]. Today, still no one is looking for these people." And
he appealed to the new leadership for its assistance in learning their fate.
3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S.
airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the
plane to Basa Airfield or some other place, such showing would not necessarily contravene the
theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila
International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling
Aquino's plane merely showed a 'wider range of conspiracy,' it being possibly just one of two or
three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In
any event, even assuming that the said piece of evidence could go either way, it may not be
successfully contended that it was prudent or wise on the part of the prosecution to totally
discard the said piece of evidence. Despite minor inconsistencies contained therein, its
introduction could have helped the cause of the prosecution. If it were not so, or that it would
even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the
same would have been totally uncalled for."
4. Nine proposed rebuttal witnesses not presented.
5. The failure to exhaust available remedies against adverse developments: "When the
Supreme Court denied the petition of Justice Fernandez [against the exclusion of the
testimonies given by the military respondents headed by Gen. Ver before the Fact Finding
Board], the latter almost immediately announced to media that he was not filing a motion for the
reconsideration of said denial for the reason that it would be futile to do so and foolhardy to
expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was
living up to the instruction of finishing the trial of the case as soon as possible, if not of
something else."
6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that
President Marcos ordered Justice Pamaran point-blank to handle the case. The pro-forma
denial by Justice Pamaran of such instruction crumbles under the actuality of such directive
having been complied with to the letter. ...
"Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to
handle the case personally by explaining that cases in the Sandiganbayan are assigned by
raffle and not to a particular Justice, but to a division thereof. The evidence before the
Comission on how the case happened to be assigned to Justice Pamaran evinces a strong
indication that such assignment was not done fairly or regularly.
"There was no evidence at all that the assignment was indeed by virtue of a regular raffle,
except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that

Justice Escareal would be presented by the respondents to testify on the contents of his
aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could
not, or would not like to testify. Neither was any one of the officials or employees of the
Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle,
presented to corroborate the claim of Justice
xxx xxx xxx
"It is also an admitted fact that the two Informations in the double murder case were filed by
Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee
were summoned at 12:20 p.m. oronly 18 minutes after the filing of the two Informations. Such
speed in the actual assignment of the case can truly be categorized as unusual, if not
extraordinary, considering that before a case filed may be included in the raffle, there is need for
a certain amount of paper work to be undertaken. If such preliminary requirements were done in
this case within the limited time available therefor, the charge that the raffle was rushed to avoid
the presence of media people would ring with truth.
What is more intriguing is the fact that although a raffle might have been actually conducted
which resulted in the assignment of the case to the First Division of the Sandiganbayan, the
Commission did not receive any evidence on how or why it was handled personally by Justice
Pamaran who wrote the decision thereof, and not by any one of the two other members of his
division. . . .
7. The custody of the accused their confinement in a military camp, instead of in a civilian
jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the
latter issued an order directing the confinement of the accused in the City Jail of Manila. This
order was not carried out in view of the information given by the Warden of the City Jail that
there was no space for the twenty-six accused in said jail. The same information was given
when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to
the National Bureau of Investigation. At that point, the defense came up with Presidential
Decree No. 1950A which authorizes the custody of the accused military personnel with their
respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was
not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of
Justice Estelito Mendoza to request a copy of the same, and was given such copy only after
sometime. ..."
8. The monitoring of proceedings and developments from Malacaang and by Malacaang
personnel: "There is an uncontradicted evidence that the progress of the proceedings in the
Sandiganbayan as well as the developments of the case outside the Court had been monitored
by Malacaang presumably for it to know what was happening and to take remedial measures
as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly
carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom
for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room',
wherein military and Malacaang personnel stayed to keep track of the proceedings." the close
monitoring by Malacaang showed its results on several occasions specified in the
Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence
injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by

having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise,Col.
Balbino Diego, Malacaang intelligence chief, suddenly appeared at the National Bureau of
Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents
for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact,"
the Commission noted "that several military personnel pretended to be deputy sheriffs of the
Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The
Commission's inescapable finding. " It is abundantly clear that President Marcos did not only
give instructions as to how the case should be handled He saw to it that he would know if his
instructions will be complied with."
9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all
of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said
manner is an integral part of the scenario which was cleverly designed to accomplish two
principal objectives, seemingly conflicting in themselves, but favorable both to then
administration and to the accused; to wit, [1] the satisfaction of the public clamor for the
suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any
possibility that they may again be prosecuted for the same offense in the event that President
Marcos shall no longer be in power.
"In rendering its decision the Sandiganbayan overdid itself in favoring the presidential
directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence
presented by the prosecution was totally ignored and disregarded. ... It was deemed not
sufficient to simply acquit all of the twenty-six accused on thestandard ground that their guilt
had not been proven beyond reasonable doubt, as was the most logical and appropriate way of
justifying the acquittal in the case, there not being a total absence of evidence that could show
guilt on the part of the accused. The decision had to pronounce them 'innocent of the
crime charged on the two informations, and accordingly, they incur neither criminal nor civil
liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such
total absolution. ...
Doubt on the soundness of the decision entertained by one of the two justices who concurred
with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who
testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores
told him that he was of the view that some of the accused should be convicted he having found
difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran
made it clear to him and Justice Vera Cruz that Malacaang had instructions to acquit all of the
twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he
would confirm this statement (which was mentioned in Justice Herrera's comment to the Second
Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony
Justice Herrera remained unrebutted " (Emphasis supplied)
The record shows suffocatingly that from beginning to end, the then President used, or more
precisely, misused the overwhelming resources of the government and his authoritarian powers
to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. As
graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur 22)
since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on
Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused was unpalatable

(it would summon the demonstrators back to the streets 23) and at any rate was not acceptable
to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the
rigged trial as ordered at the Malacanang conference, would accomplish the two principal
objectives of satisfaction of the public clamor for the suspected killers to be charged in court and
of giving them through their acquittal the legal shield of double jeopardy. 24
Indeed, the secret Malacanang conference at which the authoritarian President called together
the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire
prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and
rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the predetermined ignominious final outcome are without parallel and precedent in our annals and
jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for
habeas corpus, 25 "This is the evil of one-man rule at its very worst." Our Penal Code penalizes
"any executive officer who shall address any order or suggestion to any judicial authority with
respect to any case or business coming within the exclusive jurisdiction of the courts of
justice." 26 His obsession for "the boys' " acquittal led to several first which would otherwise be
inexplicable:
1. He turned his back on and repudiated the findings of the very Fact Finding Board that he
himself appointed to investigate the "national tragedy and national shame" of the "treacherous
and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent
and dispassionate investigation by prestigious and free investigators."
2. He cordially received the chairman with her minority report one day ahead of the four majority
members and instantly referred it to respondents "for final resolution through the legal system"
as if it were the majority and controlling report; and rebuked the four majority members when
they presented to him the next day their report calling for the indictment of all 26 respondents
headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority
report).
3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally
disregarded the Board's majority and minority findings of fact and publicly insisted that the
military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify
the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to
their alacrity in gunning down the alleged assassin Galman and searing his lips.
4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as
Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very
information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and
5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted
to convict some of the accused) granted all 26 accused total absolution and pronounced them
"innocent of the crimes charged in the two informations, and accordingly, they incur neither
criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding
Board had unanimously declared the soldiers' version of Galman being Aquino's killer a
"perjured story, given deliberately and in conspiracy with one another."

The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian
President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution
panel the matter of the imminent filing of the criminal charges against all the twenty-six accused
(as admitted by respondent Justice Fernandez to have been confirmed by him to the then
President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without
precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very
beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who
attended. As the Commission noted: "The very acts of being summoned to Malacaang and
their ready acquiescence thereto under the circumstances then obtaining, are in themselves
pressure dramatized and exemplified. ... Verily, it can be said that any avowal of independent
action or resistance to presidential pressure became illusory from the very moment they
stepped inside Malacanang Palace on January 10, 1985."
No court whose Presiding Justice has received "orders or suggestions" from the very President
who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8,
1984 on a petition challenging the referral of the Aquino-Galman murder cases to the
Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the
known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal
offenses committed by military men 26-a) made it possible to refer the cases to the
Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As
the writer then wrote, "jurisdiction over cases should be determined by law, and not
by preselection of the Executive, which could be much too easily transformed into a means
of predetermining the outcome of individual cases. 26-b "This criminal collusion as to the
handling and treatment of the cases by public respondents at the secret Malacanang
conference (and revealed only after fifteen months by Justice Manuel Herrera) completely
disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and
irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver
and Olivas and those categorized as accessories, that there has been no evidence or witness
suppressed against them, that the erroneous conclusions of Olivas as police investigator do not
make him an accessory of the crimes he investigated and the appraisal and evaluation of the
testimonies of the witnesses presented and suppressed. There will be time and opportunity to
present all these arguments and considerations at the remand and retrial of the cases herein
ordered before a neutral and impartial court.
The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand
unrectified. The courts of the land under its aegis are courts of law and justice and equity. They
would have no reason to exist if they were allowed to be used as mere tools of injustice,
deception and duplicity to subvert and suppress the truth, instead of repositories of judicial
power whose judges are sworn and committed to render impartial justice to all alike who seek
the enforcement or protection of a right or the prevention or redress of a wrong, without fear or
favor and removed from the pressures of politics and prejudice. More so, in the case at bar
where the people and the world are entitled to know the truth, and the integrity of our judicial
system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain
that as a civilian he was entitled to due process of law and trial in the regular civil courts before
an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous
and vicious assassination" and the relatives and sovereign people as the aggrieved parties
plead once more for due process of law and a retrial before an impartial court with an unbiased

prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the
century-and that the pre-determined judgment of acquittal was unlawful and void ab initio.
1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this
Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution
which represents the sovereign people in criminal cases is denied due process. As the Court
stressed in the 1985 case of People vs. Bocar, 27
Where the prosecution is deprived of a fair opportunity to prosecute and prove its
case its right to due process is thereby violated. 27-a
The cardinal precept is that where there is a violation of basic constitutional
rights, courts are ousted of their jurisdiction. Thus, the violation of the State's
right to due process raises a serious jurisdictional issue (Gumabon vs. Director of
the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be
glossed over or disregarded at will. Where the denial of the fundamental right of
due process is apparent, a decision rendered in disregard of that right is void for
lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78;
Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment
or decision rendered notwithstanding such violation may be regarded as a
"lawless thing, which can be treated as an outlaw and slain at sight, or ignored
wherever it exhibits its head" (Aducayen vs. Flores, supra).
Respondent Judge's dismissal order dated July 7, 1967 being null and void for
lack of jurisdiction, the same does not constitute a proper basis for a claim of
double jeopardy (Serino vs. Zosa, supra).
xxx xxx xxx
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered; and (e) the
case was dismissed or otherwise terminated without the express consent of the
accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent
as it was ousted of its jurisdiction when it violated the right of the prosecution to
due process.
In effect the first jeopardy was never terminated, and the remand of the criminal
case for further hearing and/or trial before the lower courts amounts merely to a
continuation of the first jeopardy, and does not expose the accused to a second
jeopardy.
More so does the rule against the invoking of double jeopardy hold in the cases at bar where as
we have held, the sham trial was but a mock trial where the authoritarian president ordered
respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire
proceedings to assure the pre-determined final outcome of acquittal and total absolution as
innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera
which saw him near the end "deactivating" himself from the case, as it was his belief that its

eventual resolution was already a foregone conclusion, they could not cope with the misuse and
abuse of the overwhelming powers of the authoritarian President to weaken the case of the
prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their
recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in
locating witnesses and overcoming their natural fear and reluctance to appear and testify,
respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced
its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to
the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile
attitude towards (it)" and their being the subject of warnings, reprimand and contempt
proceedings as compared to the nil situation for the defense. Herrera likewise complained of
being "cajoled into producing witnesses and pressed on making assurances that if given a
certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable
period of preparation of its evidence" and cited other pending cases before respondent court
that were pending trial for a much longer time where the "dizzying tempo" and "fast pace" were
not maintained by the court. 28 Manifestly, the prosecution and the sovereign people were
denied due process of law with a partial court and biased Tanodbayan under the constant and
pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying
out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the
case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds
nor bars anyone. Such a judgment is "a lawless thing which can be treated as an outlaw". It is a
terrible and unspeakable affront to the society and the people. To paraphrase Brandeis: 29 If the
authoritarian head of the government becomes the law-breaker, he breeds contempt for the law,
he invites every man to become a law unto himself, he invites anarchy.
Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case
which cannot be appealed or re-opened, without being put in double jeopardy was forcefully
disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as
follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out,
however, respondent Courts' Resolution of acquittal was a void judgment for having been
issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal
effect, no judgment at all By it no rights are divested. Through it, no rights can be attained.
Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars
anyone. All acts performed under it and all claims flowing out of it are void.
|lang1033 xxx xxx xxx
"Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must
balance. It is not to be dispensed for the accused alone. The interests of the society, which they
have wronged must also be equally considered. A judgment of conviction is not necessarily a
denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party
wronged, to the society offended, it could also mean injustice. This is where the Courts play a
vital role. They render justice where justice is due. 30
2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had
filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on
grounds of manifest bias and partiality to the defense and arising from then Atty. (now
Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching

notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of
June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should
not decide the case on the merits without first making a final ruling on the Motion for Inhibition."
Herrera quoted the exchange between him and the Presiding Justice to show the latter's
"following the script of Malacanang.
PJ PAMARAN
Well the court believes that we should proceed with the trial and
then deal later on with that. After all, the most important thing here
is, shall we say, the decision of the case.
J. HERRERA
I think more important than the decision of the case, Your
Honor, is the capacity of the justices to sit in judgment. That is
more important than anything else.(p. 13 TSN, June 25, 1985)
(Emphasis supplied by Herrera). 31
But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the
decision, for supposedly not having joined the petition for inhibition, contrary to the facts abovestated, as follows:
... the motion for inhibition above referred to related exclusively for the contempt
proceeding. Too, it must be remembered that the prosecution neither joined that
petition, nor did it at any time manifest a desire to file a similar motion prior to the
submission of these cases for decision. To do it now is not alone out of season
but is also a confession of official insouciance (Page 22, Decision). 32
The action for prohibition was filed in the Court to seek the disqualification of respondents
Justices pursuant to the procedure recognized by the Court in the 1969 case of Paredes vs.
Gopengco 33 since an adverse ruling by respondent court might result in a verdict of acquittal,
leaving the offended party without any remedy nor appeal in view of the double jeopardy rule,
not to mention the overiding and transcendental public interest that would make out a case of
denial of due process to the People if the alleged failure on the part of the Tanodbayan to
present the complete evidence for the prosecution is substantiated. 34
In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and
lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its
decision had been taken cognizance of by the Court which had required the respondents',
including the Sandiganbayan's, comments. Although no restraining order was issued anew,
respondent Sandiganbayan should not have precipitately issued its decision of total absolution
of all the accused pending the final action of this Court. This is the teaching of Valdez vs.
Aquilizan35, Wherein the court in setting aside the hasty convictions, ruled that "prudence
dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in
abeyance the promulgation of his decision pending action by this Court. But prudence gave way
to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without

awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of
discretion on his part amounting to lack of jurisdiction which substantively prejudiced the
petitioner."
3. Re: Objections of respondents.-The other related objections of respondents' counsels must
be rejected in the face of the Court's declaration that the trial was a mock trial and that the predetermined judgment of acquittal was unlawful and void ab initio.
(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of
the present action which was timely filed initially to declare a mistrial and to enjoin the rendition
of the void judgment. And after the hasty rendition of such judgment for the declaration of its
nullity, following the presentation of competent proof heard by the Commission and the Court's
findings therefrom that the proceedings were from the beginning vitiated not only by lack of due
process but also by the collusion between the public respondents (court and Tanodbayan) for
the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused.
(b) It is manifest that this does not involve a case of mere irregularities in the conduct of the
proceedings or errors of judgment which do not affect the integrity or validity of the judgment or
verdict.
(c) The contention of one of defense counsel that the State and the sovereign people are not
entitled to due process is clearly erroneous and contrary to the basic principles and
jurisprudence cited hereinabove.
(d) The submittal of respondents-accused that they had not exerted the pressure applied by the
authoritarian president on public respondents and that no evidence was suppressed against
them must be held to be untenable in the wake of the evil plot now exposed for their
preordained wholesale exoneration.
(e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime
Bldg. Co., Inc. 36 is inappropriate. The writer therein held that a party should be entitled to only
one Supreme Court and may not speculate on vital changes in the Court's membership for
review of his lost case once more, since public policy and sound practice demand that litigation
be put to an end and no second pro formamotion for reconsideration reiterating the same
arguments should be kept pending so long (for over six (6) years and one (1) month since the
denial of the first motion for reconsideration), This opinion cannot be properly invoked, because
here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986
following the denial under date of February 4th of the first motion for reconsideration and the
same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within
five months of its filing after the Commission had received the evidence of the parties who were
heard by the Court only last August 26th. The second motion for reconsideration is based on an
entirely new material ground which was not known at the time of the denial of the petition and
filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January
10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per
adventure (as proved in the Commission hearings) the merits of the petition and that the
authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence,

the ten members of the Court (without any new appointees) unanimously voted to admit the
second motion for reconsideration. 37
4. With the declaration of nullity of the proceedings, the cases must now be tried before an
impartial court with an unbiased prosecutor.-There has been the long dark night of authoritarian
regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce
Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and
authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the
Vice-President.
As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new
members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an
extremely powerful executive. During this state of judicial siege, lawyers both in and outside the
judiciary perceptively surrendered to the animus of technicality. In the end, morality was
overwhelmed by technicality, so that the latter emerged ugly and naked in its true
manifestation."
Now that the light is emerging, the Supreme Court faces the task of restoring public faith and
confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the
purse. Its strength lies mainly in public confidence, based on the truth and moral force of its
judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity
and fairness and unswerving loyalty to the Constitution and the rule of law which compels
acceptance as well by the leadership as by the people. The lower courts draw their bearings
from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned
judgment or acquittal and directing a new trial, there must be a rejection of the temptation of
becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of
one form of injustice should not become simply the beginning of another. This simply means
that the respondents accused must now face trial for the crimes charged against them before an
impartial court with an unbiased prosecutor with all due process. What the past regime had
denied the people and the aggrieved parties in the sham trial must now be assured as much to
the accused as to the aggrieved parties. The people will assuredly have a way of knowing when
justice has prevailed as well as when it has failed.
The notion nurtured under the past regime that those appointed to public office owe their
primary allegiance to the appointing authority and are accountable to him alone and not to the
people or the Constitution must be discarded. The function of the appointing authority with the
mandate of the people, under our system of government, is to fill the public posts. While the
appointee may acknowledge with gratitude the opportunity thus given of rendering public
service, the appointing authority becomes functus officio and the primary loyalty of the
appointed must be rendered to the Constitution and the sovereign people in accordance with his
sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States
Supreme Court, the Justices and judges must ever realize that they have no constituency, serve
no majority nor minority but serve only the public interest as they see it in accordance with their
oath of office, guided only, the Constitution and their own conscience and honor.
5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable
services rendered by the Commission composed of retired Supreme Court Justice Conrado M.

Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo
Caguioa as members. In the pure spirit of public service, they rendered selflessly and without
remuneration thorough competent and dedicated service in discharging their tasks of hearing
and receiving the evidence, evaluating the same and submitting their Report and findings to the
Court within the scheduled period and greatly easing the Court's burden.
ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of
November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion
for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered
nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in
Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther
Custodia et al." and ordering a re-trial of the said cases which should be conducted with
deliberate dispatch and with careful regard for the requirements of due process, so that the truth
may be finally known and justice done to an
This resolution is immediately executory. SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 72335-39 March 21, 1988
FRANCISCO S. TATAD, petitioner,
vs.
THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

YAP, J.:
In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985,
petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and
the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September
17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or
any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an
entitled "People of the Philippines versus Francisco S. Tatad."
The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes,
former Head Executive Assistant of the then Department of Public Information (DPI) and
Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal
Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and
Head of the Department of Public Information, with alleged violations of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken
on said report.
Then, in October 1979, or five years later, it became publicly known that petitioner had
submitted his resignation as Minister of Public Information, and two months after, or on
December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case
No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the
conduct of his office as then Secretary of Public Information. The complaint repeated the
charges embodied in the previous report filed by complainant before the Legal Panel,
Presidential Security Command (PSC).
On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E.
Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the
Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P.
Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation
Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD
have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO
L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal
action on the matter.

Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by
virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for
reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and
counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the
Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina
Buzon, recommending that the following informations be filed against petitioner before the
Sandiganbayan, to wit:
l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private
corporation controlled by his brother-in-law, unwarranted benefits, advantage or
preference in the discharge of his official functions through manifest partiality and
evident bad faith;
2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of
P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading
Corporation as consideration for the release of a check of P588,000.00 to said
corporation for printing services rendered for the Constitutional Convention
Referendum in 1973;
3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his
Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978.
Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan
against the petitioner:
Re: Criminal Case No. 10499
The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad
with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above- named accused, being
then the Secretary of the Department (now Ministry) of Public Information, did
then and there, wilfully and unlawfully demand and receive a check for
Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading
Corporation as consideration for the payment to said Corporation of the sum of
P588,000.00, for printing services rendered for the Constitutional Convention
Referendum of January, 1973, wherein the accused in his official capacity had to
intervene under the law in the release of the funds for said project.
That the complaint against the above-named accused was filed with the Office of
the Tanodbayan on May 16, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10500

The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.


TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practice Act, committed as follows:
That on or about the 31st day of January, 1974 in the City of Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above- named accused, a
public officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with
the Office of the President, a true detailed and sworn statement of his assets and
liabilities, as of December 31, 1973, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses and the
amount of income taxes paid for the next preceding calendar year (1973), as
required of every public officer.
That the complaint against the above-named accused was flied with the Office of
the Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10501
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, committed as
follows:
That on or about the month of May, 1975 and for sometime prior thereto, in the
City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer being then the Secretary of the
Department (now Ministry) of Public Information, did then and there, wilfully and
unlawfully give Marketing Communication Group, Inc. (D' Group), a private
corporation of which his brother-in-law, Antonio L. Cantero, is the President,
unwarranted benefits, advantage or preference in the discharge of his official
functions, through manifest partiality and evident bad faith, by allowing the
transfer of D' GROUP of the funds, assets and ownership of South East Asia
Research Corporation (SEARCH), allegedly a private corporation registered with
the Securities and Exchange Corporation on June 4, 1973, but whose
organization and operating expenses came from the confidential funds of the
Department of Public Information as it was organized to undertake research,
projects for the government, without requiring an accounting of the funds
advanced by the Department of Public Information and reimbursement thereof by
D' GROUP, to the damage and prejudice of the government.
That the complaint against the above-named accused was filed with the Office of
the Tanodbayan on May 16, 1980.
CONTRARY TO LAW.

Re: Criminal Case No. 10502


The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 31st day of January, 1977 in the City of Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, a
public officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with
the Office of the President, a true and sworn statement of his assets and
liabilities, as of December 31, 1976, including a statement of the amounts of his
personal and family expenses and the amount of income taxes paid for the next
preceding calendar year (1976), as required of every public officer.
That the complaint against the above-named accused was filed with the Office of
the Tanodbayan on June 20, 1988.
CONTRARY TO LAW.
Re: Criminal Case No. 10503
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S.
TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 15th day of April, 1979, in the City of Manila Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a
public officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with
the Office of the President, a true, detailed and sworn statement of his assets
and liabilities, as of December 31, 1978, including a statement of the amounts
and sources of his income, the amounts of his personal and family expenses and
the amount of income taxes paid for the next preceding calendar year (1978), as
required of every public officer.
That the complaint against the above-named accused was filed with the Office of
the Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the
informations on the follow grounds:
1 The prosecution deprived accused-movant of due process of law and of the
right to a speedy disposition of the cases filed against him, amounting to loss of
jurisdiction to file the informations;

2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and
10501;
3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of
Assets and Liabilities for the year 1973) do not constitute an offense;
4. No prima facie case against the accused-movant exists in Criminal Cases
Nos. 10500, 10502 and 10503;
5. No prima facie case against the accused-movant exists in Criminal Case No.
10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended;
6. No prima facie case against the accused-movant exists in Criminal Case No.
10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended.
On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to
quash, stating therein in particular that there were only two grounds in said motion that needed
refutation, namely:
1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have
already prescribed and criminal liability is extinguished; and
2. The facts charged in the information (Criminal Case No. 10500 For failure
to file Statement of Assets and Liabilities for the year 1973) do not constitute an
offense.
On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122
SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts
the period of prescription. Since the above-numbered cases were filed with the Office of
the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January
31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only
on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the
ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a
law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal
prosecution, unless the right to acquittal has been acquired, is constitutional.
Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and
Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the
Anti-Graft Law, as amended. For while the former requires "any natural or juridical person
having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "...
regardless of the networth," the mandate in the latter law is for ALL government employees and
officials to submit a statement of assets and liabilities. Hence, the prosecution under these two
laws are separate and distinct from each other. Tanodbayan also explained that delay in the
conduct of preliminary investigation does not impair the validity of the informations filed and that
neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the
law which governs preliminary investigations is merely directory insofar as it fixes a period of ten
(10) days from its termination to resolve the preliminary investigation.

On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's
motion to quash, the dispositive portion of which reads:
WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's
"Consolidated Motion to Quash" should be as it is hereby, denied for lack of
merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal
Procedure, the defect in the information in Criminal Case No. 10500 being one
which could be cured by amendment, the Tanodbayan is hereby directed to
amend said information to change the date of the alleged commission of the
offense therein charged fromJanuary 31, 1974 to September 30, 1974 within five
(5) days from receipt hereof.
SO ORDERED.
On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the
Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the
commission of the offense to September 30, 1974.
On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was
denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on
October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court,
without giving due course the petition, resolved to require the respondents to comment thereon
and issued a temporary restraining order effective immediately and continuing until further
orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing
with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and
10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito
P. Mendoza, filed their comment on January 6, 1986.
On April 10, 1986, the Court required the parties to move in the premises considering the
supervening events, including the change of administration that had transpired, and the
provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were
concerned, which requires the successor official to state whether or not he maintains the action
or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan
manifested that since "the charges are not political offenses and they have no political bearing
whatsoever," he had no alternative but to pursue the cases against the petitioner, should the
Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing
any other legal remedies under the law, such as the filing of a motion for re-evaluation of his
cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27,
1986 in which he concurred with the position taken by the new Tanodbayan.
Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for reevaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in
question be re-evaluated and the informations be quashed. The Court is not aware of what
action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing
of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as
the duty of this Court to resolve the issues raised in the instant petition is concerned.

Petitioner has raised the following issues in his petition:


1. Whether the prosecution's long delay in the filing of these cases with the
Sandiganbayan had deprived petitioner of his constitutional light to due process
and the right to a speedy disposition of the cases against him.
2. Whether the crimes charged has already prescribed.
3. Whether there is a discriminatory prosecution of the petitioner by the
Tanodbayan.
4. Whether Sandiganbayan should have ruled on the question of amnesty raised
by the petitioner.
5. Whether petitioner's contention of the supposed lack or non- existence
of prima facie evidence to sustain the filing of the cases at bar justifies the
quashal of the questioned informations.
Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due
process" and "speedy disposition of cases" in unduly prolonging the termination of the
preliminary investigation and in filing the corresponding informations only after more than a
decade from the alleged commission of the purported offenses, which amounted to loss of
jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed
petitioner's contention, saying that the applicability of the authorities cited by him to the case at
bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed
for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do
not suffice to justify acceptance thereof without any showing "as to the supposed lack or
omission of any alleged procedural right granted or allowed to the respondent accused by law or
administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse"
committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts
and circumstances as would establish petitioner's claim of denial of due process and other
constitutionally guaranteed rights could be presented and more fully threshed out at the trial.
Said the Sandiganbayan:
That there was a hiatus in the proceedings between the alleged termination of
the proceedings before the investigating fiscal on October 25, 1982 and its
resolution on April 17, 1985 could have been due to certain factors which do not
appear on record and which both parties did not bother to explain or elaborate
upon in detail. It could even be logically inferred that the delay may be due to a
painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence
presented during the preliminary investigation merited prosecution of a former
high-ranking government official. In this respect, We are the considered opinion
that the provision of Pres. Decree No. 911, as amended, regarding the resolution
of a complaint by the Tanodbayan within ten (10) days from termination of the
preliminary investigation is merely "directory" in nature, in view of the nature and
extent of the proceedings in said office.

The statutory grounds for the quashal of an information are clearly set forth in
concise language in Rule 117, Section 2, of the 1985 Rules on Criminal
Procedure and no other grounds for quashal may be entertained by the Court
prior to arraignment inasmuch as it would be itself remiss in the performance of
its official functions and subject to the charge that it has gravely abused its
discretion. Such facts and circumstances which could otherwise justify the
dismissal of the case, such as failure on the part of the prosecution to comply
with due process or any other constitutionally-guaranteed rights may presented
during the trial wherein evidence for and against the issue involved may be fully
threshed out and considered. Regrettably, the accused herein attempts to have
the Court grant such a radical relief during this stage of the proceedings which
precludes a pre-cocious or summary evaluation of insufficient evidence in
support thereof.
This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right
to due process and the right to "speedy disposition" of the cases against him as guaranteed by
the Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial
stage of the proceedings and wait to resolve the issue only after the trial?
In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to
spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear
that he has been deprived of due process of law or other constitutionally guaranteed rights. Of
course, it goes without saying that in the application of the doctrine enunciated in those cases,
particular regard must be taken of the facts and circumstances peculiar to each case.
Coming to the case at bar, the following relevant facts appear on record and are largely
undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report"
with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing
charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information
Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of
1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with
President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974
complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and
docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1,
1980-which was around two months after petitioner Tatad's resignation was accepted by Pres.
Marcos by referring the complaint to the CIS, Presidential Security Command, for
investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan,
recommending the filing of charges for graft and corrupt practices against former Minister Tatad
and Antonio L. Cantero. By October 25, 1982, all affidavits and counter-affidavits were in the
case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a
resolution was approved by the Tanodbayan, recommending the ring of the corresponding
criminal informations against the accused Francisco Tatad. Five (5) criminal informations were
filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone.
A painstaking review of the facts can not but leave the impression that political motivations
played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the
complaint came to life, as it were, only after petitioner Tatad had a falling out with President

Marcos. Secondly, departing from established procedures prescribed by law for preliminary
investigation, which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to
the Presidential Security Command for finding investigation and report.
We find such blatant departure from the established procedure as a dubious, but revealing
attempt to involve an office directly under the President in the prosecutorial process, lending
credence to the suspicion that the prosecution was politically motivated. We cannot emphasize
too strongly that prosecutors should not allow, and should avoid, giving the impression that their
noble office is being used or prostituted, wittingly or unwittingly, for political ends or other
purposes alien to, or subversive of, the basic and fundamental objective of serving the interest
of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor,
weak or strong, powerless or mighty. Only by strict adherence to the established procedure may
the public's perception of the of the prosecutor be enhanced.
Moreover, the long delay in resolving the case under preliminary investigation can not be
justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period
for the prosecutor to resolve a case under preliminary investigation by him from its termination.
While we agree with the respondent court that this period fixed by law is merely "directory," yet,
on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It
certainly can not be assumed that the law has included a provision that is deliberately intended
to become meaningless and to be treated as a dead letter.
We find the long delay in the termination of the preliminary investigation by the Tanodbayan in
the instant case to be violative of the constitutional right of the accused to due process.
Substantial adherence to the requirements of the law governing the conduct of preliminary
investigation, including substantial compliance with the time limitation prescribed by the law for
the resolution of the case by the prosecutor, is part of the procedural due process
constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the
due process clause, but under the constitutional guarantee of "speedy disposition" of cases as
embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the
inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3)
years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in
the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long
delay by indulging in the speculative assumption that "the delay may be due to a painstaking
and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the
preliminary investigation merited prosecution of a former high ranking government official." In
the first place, such a statement suggests a double standard of treatment, which must be
emphatically rejected. Secondly, three out of the five charges against the petitioner were for his
alleged failure to file his sworn statement of assets and liabilities required by Republic Act No.
3019, which certainly did not involve complicated legal and factual issues necessitating such
"painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating
the preliminary investigation. The other two charges relating to alleged bribery and alleged
giving of unwarranted benefits to a relative, while presenting more substantial legal and factual
issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan
to resolve the case.

It has been suggested that the long delay in terminating the preliminary investigation should not
be deemed fatal, for even the complete absence of a preliminary investigation does not warrant
dismissal of the information. True-but the absence of a preliminary investigation can be
corrected by giving the accused such investigation. But an undue delay in the conduct of a
preliminary investigation can not be corrected, for until now, man has not yet invented a device
for setting back time.
After a careful review of the facts and circumstances of this case, we are constrained to hold
that the inordinate delay in terminating the preliminary investigation and filing the information in
the instant case is violative of the constitutionally guaranteed right of the petitioner to due
process and to a speedy disposition of the cases against him. Accordingly, the informations in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of
the foregoing, we find it unnecessary to rule on the other issues raised by petitioner.
Accordingly, the Court Resolved to give due course to the petition and to grant the same. The
informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People
of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining
order issued on October 22, 1985 is made permanent.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 121234 August 23, 1995


HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA
G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch
274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of
Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L.
DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO
FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA
G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch
274,respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition
and mandamuswith application for temporary restraining order and preliminary injunction to: (1)
annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges
Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents
from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said
criminal case or include Jessica Alfaro as one of the accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau of
Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners
Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime
of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors
headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary
investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their
home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement
dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the
Webb family in the persons of Nerissa E. Rosales and Mila S.Gaviola; 8 (3) the sworn-statement
of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines
Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was
his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of
Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the
crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the
Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano
Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they
showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production And Examination of Evidence and Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to
and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated
October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;

(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report
dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica
Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other
police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the
documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This
compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of
Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement.
He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a
copy of said original in compliance with a subpoena duces tecum. The original was then
submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears,
however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of
Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at
bar as he went to the United States on March 1, 1991 and returned to the Philippines on
October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia
Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further
support his defense, he submitted documentary evidence that he bought a bicycle and a 1986
Toyota car while in the United States on said dates 14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise
submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US
Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco,
California on March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy"
Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements,
responses, and a motion to dismiss denying their complicity in the rape-killing of the
Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last known address. 17In his
sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29,
1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends,
Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He
claimed that his co-petitioner Lejano was with him.

On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold
respondents for trial" and recommending that an Information for rape with homicide be filed
against petitioners and their co-respondents, 18 On the same date, it filed the corresponding
Information 19 against petitioners and their co-accused with the Regional Trial Court of
Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258
presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul
de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to
avoid any suspicion about his impartiality considering his employment with the NBI before his
appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita
Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On
August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp
Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave
themselves up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino
gravely abused their discretion when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion
in holding that there is probable cause to charge them with the crime of rape with homicide; (3)
the DOJ Panel denied them their constitutional right to due process during their preliminary
investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to
charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May
22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They
hammer on alleged material inconsistencies between her April 28, 1995 and May 22,
1995 sworn statements. They assail her credibility for her misdescription of petitioner
Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ
Panel when it did not examine witnesses to clarify the alleged incredulities and
inconsistencies in the sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of
Rule 112 provides that a preliminary investigation should determine " . . . whether there
is a sufficient ground to engender a well-grounded belief that a crime cognizable by the
Regional Trial Court has been committed and that the respondent is probably guilty
thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure
in conducting a preliminary investigation, thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the following
manner:

(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents, in such number of copies as there are respondents, plus
two (2) copies for the official file. The said affidavits shall be sworn to before any
fiscal, state prosecutor or government official authorized to administer oath, or, in
their absence or unavailability, a notary public, who must certify that he
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer
shall either dismiss the same if he finds no ground to continue with the inquiry, or
issue a subpoena to the respondent, attaching thereto a copy of the complaint,
affidavits and other supporting documents. Within ten (10) days from receipt
thereof, the respondent shall submit counter-affidavits and other supporting
documents. He shall have the right to examine all other evidence submitted by
the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the
respondent shall also be sworn to and certified as prescribed in paragraph (a)
hereof and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
base his resolution on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he
may set a hearing to propound clarificatory questions to the parties or their
witnesses, during which the parties shall be afforded an opportunity to be present
but without the right to examine or cross-examine. If the parties so desire, they
may submit questions to the investigating officer which the latter may propound
to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating
officer shall resolve the case within ten (10) days therefrom. Upon the evidence
thus adduced, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He
shall certify under oath that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses, that there is reasonable ground
to believe that a crime has been committed and that the accused is probably guilty
thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects "the right of the
people to be secure in their persons . . . against unreasonable searches and seizures of
whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a

person, and violates the privacy of persons which ought not to be intruded by the
State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction.
Continuing accretions of case law reiterate that they are facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed by
the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable
caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous
and their reference is not to a person with training in the law such as a prosecutor or a judge but
to the average man on the street. 25 It ought to be emphasized that in determining probable
cause, the average man weighs facts and circumstances without resorting to the calibrations of
our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely
abused its discretion when it found probable cause against the petitioners. Petitioners
belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously
described petitioner Webb's hair as semi-blond and (b) she committed material
inconsistencies in her two (2) sworn statement, thus: 26
xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in the two sworn
statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: "I met her in a party sometime in February,
1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that
night. She just said "on the following day I read in the newspaper
that there were three persons who were killed . . ."
Second Affidavit: "I peeped through the first door on the left. I saw
two bodies on top of the bed, bloodied, and in the floor, I saw
Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare buttocks, on
top of Carmela and pumping, her mouth gagged and she was
moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house


First Affidavit: "by jumping over the fence, which was only a little
more than a meter high."
Second Affidavit: They "entered the gate which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate leading to the
dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and
inconsistencies did not erode the credibility of Alfaro. We quote the pertinent
ruling, viz.: 27
xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for purposes of
argument merely that she is a co-conspirator, it is well to note that confessions of
a co-conspirator may be taken as evidence to show the probability of the coconspirator's participation in the commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved
by direct evidence of prior agreement to commit the crime. Indeed, "only rarely
would such a prior agreement be demonstrable since, in the nature of things,
criminal undertakings are only rarely documented by agreements in writing.
Thus, conspiracy may be inferred from the conduct of the accused before, during
and after the commission of the crime, showing that the several accused had
acted in concert or in unison with each other, evincing a common purpose or
design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted;
People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two
sworn statements. InAngelo, the Court refused to discredit the testimony of a
witness accusing therein petitioner for the slaying of one Gaviano Samaniego
even though said witness failed to name Angelo in his affidavit which was
executed five (5) months earlier. Granting, the Court continued, that a part of the
witness' testimony is untrue, such circumstance is not sufficient to discredit the
entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his
memorandum suggesting that the instant complaint "should not be decided within
the month to give time to the NBI to coordinate with the FBI on the latter's inquiry

into the whereabouts of Hubert Webb . . . and to check on our U.S.-based


witnesses."
In said memorandum, counsel for respondent Webb calls for the application of
the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of
Alfaro's statements, among others. This is untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part
of the testimony of a witness as worthy of belief and from
simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in
omnibus is not a rule of law, let alone a general rule of law which
is universally applicable. It is not a legal presumption either. It is
merely a latinism describing the conclusion reached by a court in
a particular case after ascribing to the evidence such weight or
lack of weight that the court deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having
reservations when she first executed the first statement and held back vital
information due to her natural reaction of mistrust. This being so, the panel
believes that the inconsistencies in Alfaro's two sworn statements have been
sufficiently explained especially specially so where there is no showing that the
inconsistencies were deliberately made to distort the truth. Consequently, the
probative value of Alfaro's testimony deserves full faith and credit. As it has been
often noted, ex parte statements are generally incomplete because they are
usually executed when the affiant's state of mind does not give her sufficient and
fair opportunity to comprehend the import of her statement and to narrate in full
the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994];
Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a
crime has been committed and what is clear before us is that the totality of the
evidence submitted by the complainant indicate a prima faciecase that
respondents conspired in the perpetration of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the
supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the
Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a
paramour of Gerardo Biong. The Panel assayed their statements as follows: 29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the Webb family, on
June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was
at home inside his room with two male visitors. She knew it because she and her
co-housemaid, Loany, were instructed by Hubert to bring them three glasses of

juice. It was the last time she saw Hubert and was later told by then
Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who
served as a laundry woman, claims, aside from corroborating the statement of
Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the
morning and as what she used to do, she entered the rooms of the Webbs to get
their clothes to be washed. As a matter of fact, in that early morning, she entered
Hubert's room and saw Hubert, who was only wearing his pants, already awake
and smoking while he was sitting on his bed. She picked up Hubert's scattered
clothes and brought them together with the clothes of the other members of the
family to the laundry area. After taking her breakfast, she began washing the
clothes of the Webbs. As she was washing the clothes of Hubert Webb, she
noticed fresh bloodstains in his shirt. After she finished the laundry, she went to
the servant's quarters. But feeling uneasy, she decided to go up to the stockroom
near Hubert's room to see what he was doing. In the said stockroom, there is a
small door going to Hubert's room and in that door there is a small opening
where she used to see Hubert and his friends sniffing on something. She
observed Hubert was quite irritated, uneasy, and walked to and from inside his
room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon
and came back at around 4:00 in the same afternoon and went inside his room
using the secret door of the house. It was the last time that she saw Hubert until
she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about
10:00 in the morning, he was at the Ninoy Aquino International Airport as he was
then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon
for New York. At the airport's lobby, he saw then Congressman Freddie Webb
with a male companion. He greeted him and Webb answered: "Mabuti naman, at
ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because
he often watched him then in a television show "Chicks to Chicks." He observed
that the man whom Freddie Webb referred to as his son, was of the same height
as Freddie. The son referred to has fair complexion with no distinguishing marks
on his face. He (son of Webb) was then wearing a striped white jacket. When he
and his children were already inside the plane, he did not see Freddie anymore,
but he noticed his son was seated at the front portion of the economy class. He
never noticed Freddie Webb's son upon their arrival in San Francisco. He claims
that, while watching the television program "DONG PUNO LIVE" lately, he saw
the wife of Freddie Webb with her lawyer being interviewed, and when she
described Hubert as "moreno" and small built, with a height of five feet and seven
inches tall, and who was the one who left for United States on March 9, 1991, he
nurtured doubts because such description does not fit the physical traits of the
son of Freddie, who left with him for United States on the same flight and date.

Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with
him for almost three (3) years and in fact, she had a child with him who is now
four (4) years old. Their relationship started in February, 1991 until she broke up
with him in September 1993. She recalls that on June 29, 1991, at around 6:00
p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo
located at the back of the Paraaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio operator of the
Paraaque police told Biong that he has a phone call. Before Biong went to the
radio room, she was instructed to take him over and after somebody won the
game, she followed Biong at the radio room where she overheard him uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o
sige." When he put the phone down, Biong told her, "Mayroon lang akong
rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow,
arrived with a male passenger sitting at the backseat and parked near the
canteen. After it made some signals by blinking its headlight, Biong rode thereat
at the front seat beside the driver and then, they left. She was not able to
recognize the male passenger because the window of the taxi was tinted. Biong
came back at around 7:00 of the same morning and when he arrived, he
immediately washed his hands and face, and took his handkerchief from his
pocket which he threw at the trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae." She inquired what
happened in BF Homes and he replied, "Putang inang mga batang iyon,
pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his office where she
observed him doing something in his steel cabinet while he appeared to be
uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and
said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong
answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome
who offered to accompany him and with whom she asked permission to go with
them. Before they proceeded to the place where the killings happened, she
asked Biong if he knew the exact address and the latter immediately responded,
"Alam ko na yon." She was surprised because Galvan never told him the place of
the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the
housemaids to contact the victim's relatives, while the security guard fetched the
barangay chairman and the president of the Homeowners Association. When all
these persons were already in the house, Biong started recording the wounds of
the victim. Inside the master's bedroom, she saw Biong took a watch from the
jewelry box. Because she could not tolerate the foul odor, she and Capt.
Bartolome went out of the room and proceeded to the dining area. On top of the
dining table, she saw the scattered contents of a shoulder bag. Moments later,
Biong came out from the room and proceeded to the front door to remove the
chain lock; asked the keys from the housemaid and it was only then that the main

door was opened. Biong noticed a stone in front of the broken glass of the door
and requested Capt. Bartolome to go inside the servant's quarters as he doubted
the housemaids' claim that they heard nothing unusual. Using the handle of his
gun, Biong broke the remaining glass of the door panel. Bartolome then came
out of the room and told Biong that he can hear the sound of the glass being
broken. At the garage, Biong also noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together
with the Vizconde housemaids. When Biong was preparing to take a bath, she
saw him remove from his pocket the things she also saw from Vizconde's
residence, to wit: calling cards, driver's license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the
jewelry box inside the room of the Vizcondes. These jewelry items were later
pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow
restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from
his locker at the Paraaque Police Station an imported brown leather jacket,
which the latter claimed to have been given to him by the person who called him
up in the early morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in
1993. She observed that Biong seemed not interested in pursuing the
investigation of the Vizconde case. In fact, when Biong and this group picked up
Mike Gatchalian and brought him to the Paraaque Police Station, she was
surprised that Biong halted the investigation when Gatchalian was profusely
sweating while being interrogated. After the father of Gatchalian talked to Colonel
Pureza, the latter called up and instructed Biong to bring Gatchalian to him
(Colonel Pureza) and that was the last thing she remembered regarding this
case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:30
xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to support his
defense of denial and alibi notwithstanding, the panel, after a careful and
thorough evaluation of the records, believes that they cannot outweigh the
evidence submitted by the complainant. Alibi cannot prevail over the positive
identification made by a prosecution witness. Verily, alibi deserves scant
consideration in the face of positive identification especially so where the claim of
alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA
124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot be given greater
evidentiary weight than the declaration of a credible witness who testified on
affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial,
like alibi, is weak and becomes even more weaker when arrayed against the

positive identification by the witness for the prosecution (People vs. Onpaid, 233
SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom
he claimed was with him watching video tapes at the Syyap residence. Other
than claiming that he "was not and could not have been at or near the area of the
Vizconde residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability of his
alibi in the form of documents tending to show that he was thousands of miles
away when the incident occurred. We have carefully deliberated and argued on
the evidence submitted by respondent Webb in support of his absence from the
country since March 9, 1991 to October 26, 1992 and found the same wanting to
exonerate him of the offense charged. The material dates in this case are June
29 and 30, 1991. While respondent Webb may have submitted proof tending to
show that he was issued a California driver's license on June 14, 1991, there is
no showing that he could not have been in the country on the dates above
mentioned. Neither do we find merit in the allegation that respondent Webb
personally bought a bicycle on June 30, 1991 in California in view of his positive
identification by Alfaro and the two (2) househelps of the Webb family who
testified that he was here in the country on said dates. Additionally, the issuance
of receipt evidencing the purchase of a bicycle in California is no conclusive proof
that the name appearing thereon was the actual buyer of the merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that
the DOJ Panel did not gravely abuse its discretion when it found probable cause against
the petitioners. A finding of probable cause needs only to rest on evidence showing
that more likely than not a crime has been committed and was committed by the
suspects. Probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely, not on
evidence establishing absolute certainty of guilt. As well put in Brinegar v. United
States, 31 while probable cause demands more than "bare suspicion," it requires "less
than evidence which would justify . . . conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to confront and cross-examine

his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly
adjudged that enough evidence had been adduced to establish probable cause and
clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon and,
later, respondent Judge Amelita Tolentino issued warrants of arrest against them without
conducting the required preliminary examination. Petitioners support their stance by
highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few
hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to
the trial court were incomplete and insufficient from which to base a finding of probable
cause; and (4) that even Gerardo Biong who was included in the Information as a mere
accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate
that it was impossible to conduct a "searching examination of witnesses and evaluation
of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by
no less than the fundamental law of the land. Section 2 of Article III of the Constitution
provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce and particularly describing the place to be searched and the
persons or things to be seized.
The aforequoted provision deals with the requirements of probable cause both with
respect to issuance of warrants of arrest or search warrants. The similarities and
differences of their requirements ought to be educational. Some of them are pointed out
by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same
quantum of evidence is required whether one is concerned with probable cause to arrest
or probable cause to search. But each requires a showing of probabilities as to
somewhat different facts and circumstances, and thus one can exist without the other. In
search cases, two conclusions must be supported by substantial evidence: that the
items sought are in fact seizable by virtue of being connected with criminal activity, and
that the items will be found in the place to be searched. It is not also necessary that a
particular person be implicated. By comparison, in arrest cases there must be probable
cause that a crime has been committed and that the person to be arrested committed it,
which of course can exist without any showing that evidence of the crime will be found at
premises under that person's control." Worthy to note, our Rules of Court do not provide
for a similar procedure to be followed in the issuance of warrants of arrest and search
warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that
"upon filing of an information, the Regional Trial Court may issue a warrant for the arrest

of the accused." In contrast, the procedure to be followed in issuing search warrants is


more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue
but upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. The judge must, before issuing
the warrant, personally examine in the form of searching questions and answers,
in writing and under oath the complainant and any witnesses he may produce on
facts personally known to them and attach to the record their sworn statements
together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. If the judge is thereupon
satisfied of the facts upon which the application is based, or that there is
probable cause to believe that they exist, he must issue the warrant, which must
be substantially in the form prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar, 33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the
constitutional provision on the issuance of warrants of arrest. The pertinent
provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation
of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons
or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of

probable cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and personal responsibility of
the issuing judge to satisfy himself of the existence of probable cause. In
satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he
shall: (1) personally evaluate the report and the documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue
a warrant; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusions as to the existence of probable
cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden
with the preliminary examination and investigation of criminal complaints instead
of concentrating on hearing and deciding cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also
reject petitioners' contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of
Arrest prior to a warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two
(2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking
recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both
judges that there is probable cause to issue warrants of arrest against petitioners. Again,
we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certaintyof guilt of an accused. In doing so, judges do not conduct
a de novo hearing to determine the existence of probable cause. They just personally
review the initial determination of the prosecutor finding a probable cause to see if it is
supported by substantial evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it took the respondent
judges a few hours to review and affirm the probable cause determination of the DOJ
Panel does not mean they made no personal evaluation of the evidence attached to the
records of the case. 36
Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause.
Not even the corpus delicti of the crime was established by the evidence of the
prosecution in that case. Given the clear insufficiency of the evidence on record, we
stressed the necessity for the trial judge to make a further personal examination of the
complainant and his witnesses to reach a correct assessment of the existence or non-

existence of probable cause before issuing warrants of arrest against the accused. The
case at bar, however, rests on a different factual setting. As priorly discussed, the
various types of evidence extant in the records of the case provide substantial basis for
a finding of probable cause against the petitioner. The corpus delicti of the crime is a
given fact. There is an eyewitness account of the imputed crime given by Alfaro. The
alibi defense of petitioner Webb is also disputed by sworn statements of their former
maids. It was therefore unnecessary for the respondent judges to take the further step of
examining ex parte the complainant and their witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial
publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct
the preliminary investigation with indecent haste. Petitioners were given fair opportunity
to prove lack of probable cause against them. The fairness of this opportunity is well
stressed in the Consolidated Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the
opportunities to be heard. Petitioner Webb actively participated in the preliminary
investigation by appearing in the initial hearing held on June 30, 1995 and in the
second hearing on July 14, 1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a
"Reply to the compliance and Comment/Manifestation to the Motion for
Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a
"Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "CounterAffidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August
1, 1995. Numerous letter-requests were also sent by the petitioner Webb's
counsel to the DOJ Panel requesting the latter to furnish him a copy of the
reports prepared by the FBI concerning the petitioner's whereabouts during the
material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated
August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to
issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed
a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional
Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to
produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p.
4, Petition) The said court dismissed the petition after Mercader produced and
submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on
the admissibility and credence of the two (2) conflicting and inconsistent sworn
statements of the principal witness, Alfaro. (Attached hereto is a copy of the order
of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995)
marked as Annex "F."

It must also be pointed out that despite the declaration by the DOJ Panel that the
preliminary investigation was to be terminated after the hearing held on July 14,
1995, the panel continued to conduct further proceedings, e.g. comparison of the
photo-copies of the submitted documents with the originals on July 17, 1995. (p.
7, Petition) The panel even entertained the "Response" submitted by accused
Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the
panel even announced that any party may submit additional evidence before the
resolution of the case. (p. 8, Petition) From the time the panel declared the
termination of the preliminary investigation on July 14, 1995, twenty-seven (27)
days elapsed before the resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Paraaque on August 10, 1995.
This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules
of Court that the investigating officer shall resolve the case within ten (10)
days from the termination of the preliminary investigation. The DOJ Panel
precisely allowed the parties to adduce more evidence in their behalf and for the
panel to study the evidence submitted more fully. This directly disputes the
allegation of the petitioners that the resolution was done with indecent haste in
violation of the rights of the petitioners. During the period of twenty-seven (27)
days, the petitioners were free to adduce and present additional evidence before
the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during
the conduct of the preliminary investigation simply because the DOJ Panel
promulgated the adverse resolution and filed the Information in court against
them.
Petitioners cannot also assail as premature the filing of the Information in court against
them for rape with homicide on the ground that they still have the right to appeal the
adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said
Information is in accord with Department of Justice Order No. 223, series of 1993, dated
June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or
City Prosecutor finding probable causeexcept upon showing of manifest error or
grave abuse of discretion. Notwithstanding the showing of manifest error or
grave abuse of discretion, no appeal shall be entertained where the appellant
had already been arraigned. If the appellant is arraigned during the pendency of
the appeal, said appeal shall be dismissed motu propio by the Secretary of
Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Sec. 2. When to appeal. The appeal must be filed within a period of fifteen
(15) days from receipt of the questioned resolution by the party or his counsel.
The period shall be interrupted only by the filing of a motion for reconsideration

within ten (10) days from receipt of the resolution and shall continue to run from
the time the resolution denying the motion shall have been received by the
movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in
court after the consummation of the preliminary investigation even if the accused can still
exercise the right to seek a review of the prosecutor's recommendation with the
Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information
considering her alleged conspiratorial participation in the crime of rape with homicide.
The non-inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit
Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its
Section 10, which provides:
xxx xxx xxx
Sec. 10. State Witness. Any person who has participated in the commission of
a crime and desires to a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the Program
whenever the following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony as defined
under the R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the
offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in
order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119
of the Revised Rules of Court may upon his petition be admitted to the Program if
he complies with the other requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused so that he can be used as a Witness under
Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her
non-inclusion in the criminal Complaint or Information, thus:

xxx xxx xxx


Sec. 12. Effect of Admission of a State Witness into the Program. The
certification of admission into the Program by the Department shall be given full
faith and credit by the provincial or city prosecutor who is required NOT TO
INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR
INFORMATION and if included therein, to petition the court for his discharge in
order that he can be utilized as a State Witness. The court shall order the
discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from
criminal prosecution for the offense or offenses in which his testimony will be
given or used and all the rights and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the
power under the Rules on Criminal Procedure to discharge an accused as a state
witness." The argument is based on Section 9, Rule 119 38which gives the court the
prerogative to approve the discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that the decision whom to
prosecute is a judicial function, the sole prerogative of courts and beyond executive and
legislative interference. In truth, the prosecution of crimes appertains to the executive
department of government whose principal power and responsibility is to see that our
laws are faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor with a
wide range of discretion the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasbord of factors which are best appreciated by
prosecutors. We thus hold that it is not constitutionally impermissible for Congress to
enact R.A. No. 6981 vesting in the Department of Justice the power to determine who
can qualify as a witness in the program and who shall be granted immunity from
prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to
choose who shall be a state witness is an inherent judicial prerogative. Under this
provision, the court, is given the power to discharge a state witness only because it has
already acquired jurisdiction over the crime and the accused. The discharge of an
accused is part of the exercise of jurisdiction but is not a recognition of an inherent
judicial function. Moreover, the Rules of Court have never been interpreted to be beyond
change by legislation designed to improve the administration of our justice system. R.A.
No. 6981 is one of the much sought penal reform laws to help government in its uphill
fight against crime, one certain cause of which is the reticence of witnesses to testify.
The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for
fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a
more effective administration of criminal justice, there was a necessity to pass a law
protecting witnesses and granting them certain rights and benefits to ensure their
appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity
of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings
during their preliminary investigation by suppressing the April 28, 1995 original copy of
the sworn statement of Alfaro and the FBI Report. The argument is novel in this
jurisdiction and as it urges an expansive reading of the rights of persons under
preliminary investigation it deserves serious consideration. To start with, our Rules on
Criminal Procedure do not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule
117 do provide an accused the right to move for a bill of particulars and for production or
inspection of material evidence in possession of the prosecution.42 But these provisions
apply after the filing of the Complaint or Information in court and the rights are accorded
to the accused to assist them to make an intelligent plea at arraignment and to prepare
for trial. 43
This failure to provide discovery procedure during preliminary investigation does not,
however, negate its use by a person under investigation when indispensable to protect
his constitutional right to life, liberty and property. Preliminary investigation is not too
early a stage to guard against any significant erosion of the constitutional right to due
process of a potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a crime. We hold
that the finding of a probable cause by itself subjects the suspect's life, liberty and
property to real risk of loss or diminution. In the case at bar, the risk to the liberty of
petitioners cannot be understated for they are charged with the crime of rape with
homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of
preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary
investigation conducted by one whose high duty is to be fair and impartial. 44 As this
Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary
investigation conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a mere formal or
technical right; it is a substantive right." A preliminary investigation should therefore be
scrupulously conducted so that the constitutional right to liberty of a potential accused
can be protected from any material damage. We uphold the legal basis of the right of
petitioners to demand from their prosecutor, the NBI, the original copy of the April 28,
1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the
issue of their probable guilt. The right is rooted on the constitutional protection of due
process which we rule to be operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during
the preliminary investigation the filing of a sworn complaint, which shall ". . . state the
known address of the respondent and be accompanied by affidavits of the complainant
and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States
Supreme Court held that "suppression of evidence favorable to an accused upon
request violates due process where the evidence is material to guilt or punishment,

irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935
case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's
intentional use of perjured testimony to procure conviction violates due process. Thus,
evolved jurisprudence firming up the prosecutor's duty to disclose to the defense
exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan
in Brady 49 "society wins not only when the guilty are convicted but when criminal trials
are fair." Indeed, prosecutors should not treat litigation like a game of poker where
surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in
their favor, we are not prepared to rule that the initial non-production of the original
sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable
likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI,
on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28,
1995 sworn statement. It explained it cannot produce the original as it had been lost.
Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from
Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As
petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn
statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to
the DOJ Panel then still conducting their preliminary investigation the exculpatory
aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found
probable cause to charge them despite the alleged material discrepancies between the
first and second sworn statements of Alfaro. For reasons we have expounded, this
finding of probable cause cannot be struck down as done with grave abuse of
discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of
petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in
light of the totality of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due
to the prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.
In floating this issue, petitioners touch on some of the most problematic areas in
constitutional law where the conflicting demands of freedom of speech and of the press,
the public's right to information, and an accused's right to a fair and impartial trial collide
and compete for prioritization. The process of pinpointing where the balance should be
struck has divided men of learning as the balance keeps moving either on the side of
liberty or on the side of order as the tumult of the time and the welfare of the people
dictate. The dance of balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high

velocity of publicity that attended the preliminary investigation of the case at bar. Our
daily diet of facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many of which are sober and
sublime. Indeed, even the principal actors in the case the NBI, the respondents, their
lawyers and their sympathizers have participated in this media blitz. The possibility of
media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be
completely closed to the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, 53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws were
adopted, criminal trials both here and in England had long been presumptively
open, thus giving assurance that the proceedings were conducted fairly to all
concerned and discouraging perjury, the misconduct of participants, or decisions
based on secret bias or partiality. In addition, the significant community
therapeutic value of public trials was recognized: when a shocking crime occurs,
a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility, and emotion. To work effectively, it is
important that society's criminal process "satisfy the appearance of justice," Offutt
v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be
provided by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries past,
it must be concluded that a presumption of openness inheres in the very nature
of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the
First Amendment, share a common core purpose of assuring freedom of
communication on matters relating to the functioning of government. In
guaranteeing freedoms such as those of speech and press, the First Amendment
can be read as protecting the right of everyone to attend trials so as to give
meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of
speech and press, standing alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at the time the First
Amendment was adopted. Moreover, the right of assembly is also relevant,
having been regarded not only as an independent right but also as a catalyst to
augment the free exercise of the other First Amendment rights with which it was
deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally
and representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of
what takes place.

(c) Even though the Constitution contains no provision which by its terms
guarantees to the public the right to attend criminal trials, various fundamental
rights, not expressly guaranteed, have been recognized as indispensable to the
enjoyment of enumerated rights. The right to attend criminal trials is implicit in the
guarantees of the First Amendment; without the freedom to attend such trials,
which people have exercised for centuries, important aspects of freedom of
speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content, of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of
the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the
sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond
knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors. Their long experience in criminal investigation is a factor
to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they accommodated the
discovery motions of petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel on the ground of
bias resulting from their bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as
petitioners will now have to undergo trial on the merits. We stress that probable cause is
not synonymous with guilt and while the light of publicity may be a good disinfectant of
unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without
imposing on the trial judge the difficult task of supervising every specie of speech
relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in
high profile criminal cases to control publicity prejudicial to the fair administration of
justice. 55 The Court reminds judges that our ability to dispense impartial justice is an
issue in every trial and in every criminal prosecution, the judiciary always stands as a
silent accused. More than convicting the guilty and acquitting the innocent, the business
of the judiciary is to assure fulfillment of the promise that justice shall be done and is
done and that is the only way for the judiciary to get an acquittal from the bar of public
opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. 86899-903 May 15, 1989
GOVERNOR AMOR D. DELOSO, petitioner,
vs.
THE SANDIGANBAYAN, THE PEOPLE OF THE PHILIPPINES, and THE SECRETARY OF
THE DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITY
DEVELOPMENT, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
The Office of the Solicitor General for public respondent.

GUTIERREZ, JR., J.:


This petition for certiorari seeks to annul and set aside the resolution of the Sandiganbayan
dated February 10, 1989 in Criminal Cases Nos. 9200 to 9204 which preventively suspended
petitioner Amor D. Deloso (accused in the criminal cases) pendente lite from his position as
provincial governor of Zambales and from any office that he may be holding.
The petitioner was the duly elected mayor of Botolan, Zambales in the local elections of
November 1971. While he occupied the position of mayor, a certain Juan Villanueva filed a letter
complaint with the Tanodbayan accusing him of having committed acts in violation of the AntiGraft Law (Republic Act 3019) in relation to the award of licenses to operate fish corrals in the
municipal waters of Botolan, Zambales during the period 1976 to 1978 and the issuance of five
(5) tractors of the municipality to certain individuals allegedly without any agreement as to the
payment of rentals.
The complaint with respect to the award of licenses to operate fish corrals was dismissed. As
regards the other complaint, the Tanodbayan filed five (5) separate informations, all dated May
30, 1984 accusing the petitioner of violation of Section 3(e), of the Anti-Graft Law with the
Sandiganbayan. The cases were docketed as Criminal Cases Nos. 9200-9204. Except for the
names of the individuals who were allegedly favored by the petitioner and the dates when these
favors were made, the informations uniformly alleged:
That on or about 3 February 1978 in the Municipality of Botolan, Zambales,
Philippines and within the jurisdiction of this Honorable Court, accused AMOR D.
DELOSO, a public officer being then the Municipal Mayor of the Municipality of
Botolan, Zambales, taking advantage of his public and official position, did then
and there wilfully, unlawfully and feloniously give unwarranted benefits to Daniel

Ferrer thru manifest partiality and evident bad faith in the discharge of his official
functions by issuing to him a tractor purchased by the Municipality of Botolan thru
a loan financed by the Land Bank of the Philippines for lease to local farmers at
reasonable cost, without any agreement as to the payment of rentals for the use
of tractor by Daniel Ferrer thereby causing undue injury to the Municipality of
Botolan. (Rollo, p. 30)
A motion to quash the informations was denied by the Sandiganbayan. A motion for
reconsideration was likewise denied.
The petitioner then filed a petition before us (G.R. Nos. 69963-67) to annul the Sandiganbayan's
resolutions denying the petitioner's motion to quash and motion for reconsideration.
In a resolution dated July 28,1988, we dismissed the petition for lack of merit. The resolution
became final and executory on October 17, 1988.
The petitioner was arraigned on January 6, 1989 before the Sandiganbayan. He pleaded NOT
GUILTY to the charges against him.
The Office of the Special Prosecutor then filed a motion to suspend the petitioner pendente
lite pursuant to Section 13 of Republic Act No. 3019.
On February 10, 1989, the Sandiganbayan issued the questioned resolution, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, the accused Amor D. Deloso is
suspended pendente lite from his position as Provincial Governor of Zambales
and from any other office that he may now be holding.
Let a copy of this Resolution be furnished to the Secretary of the Department of
Local Government for implementation and for him to inform this Court of the
action he has taken thereon within five (5) days from receipt hereof. (Rollo, p. 94)
The day following his receipt of the resolution, or on February 16, 1989, the petitioner filed the
instant petition.
On February 17, 1989, the petitioner filed an urgent motion with the Sandiganbayan requesting
that the execution and implementation of the February 10, 1989 suspension order be held in
abeyance pending determination of the merits of the petition. The motion was denied prompting
the petitioner to ask the Court for an earlier setting of the trial of the cases which was denied in
an order dated February 22, 1989.
In denying the plea for an earlier schedule of the trial of the cases, the Sandiganbayan said:
The Court notes that these cases have already been set for May 15, 16 and 17
as well as June 5, 6 and 7, 1989 at 8:00 o'clock in the morning and 2:00 o'clock
in the afternoon. While the accused claims that this period is ordinately far, the

Court must also be contend with its own calendar. It will be easy enough for this
Court to give the accused an earlier setting. However, such a setting will be best
a pretence since other cases have already been set between now and May 15
where in many instances the accused themselves are also under suspension by
reason of the same provision of law. Under the above circumstances, no other
earlier setting can be granted to the accused without making that setting merely a
sham since other cases which have been set earlier will naturally have a right to
expect priority. (Rollo, p. 135)
In view of this development, the petitioner filed an urgent supplemental application for temporary
restraining order and/ or writ of preliminary injunction to enjoin the Sandiganbayan, the
Secretary of Local Government and Community Development, and all those acting in their
behalf from executing and implementing the February 10, 1989 resolution of the
Sandiganbayan.
We treat the respondent's Comment as an answer and decide this petition on its merits.
The petitioner questions the constitutionality of the suspension provision of Section 13 of the
Anti-Graft Law (Republic Act No. 3019).
This same issue was raised in the case of Layno v. Sandiganbayan (136 SCRA 536 [1985]).
After considering the facts as well as the merits of the case, the Court ruled that the petition
need not be resolved through a ruling on the validity of the provision on mandatory suspension.
We instead, decided the case in relation to the principles of due process and equal protection of
the law.
Faced with similar factual circumstances in the instant petition, we apply anew the ruling in
the Layno case and decide the instant petition in relation to the principles of due process and
equal protection without having to declare categorically whether or not the suspension provision
of Republic Act 3019 should be struck down as invalid. We limit ourselves to ascertaining
whether or not, under the circumstances of this case, an indefinite suspension becomes
unreasonable.
As early as 1974, then Justice Fred Ruiz Castro expressed in a separate opinion the mischief
which would result if the Court allows the indefinite suspension of elective local officials charged
with violations of the Anti Graft and Corrupt Practices Act:
The central point of Senator Padilla's position is that the penalty of suspension is
definitely much lower than that of removal and it would be incongruous if we give
to the penalty of suspension more serious consequences than are attached to
the penalty of removal. Senator Padilla opted for the immediate restoration of the
respondent to his position once the favorable result of the election is known.
Parenthetically, it must be stated that while there was an exchange of views
between Senator Ganzon and Senator Manglapus on the Anti-Graft Law, the
exchange was limited to the matter of the commencement of the investigation of

the charges, which, according to Senator Ganzon, cannot be made within one
year prior to an election.
And so it is that, on the basis of my discussion above, I bewail the apathy of the
majority of the Court toward efforts to seek enlightenment on legal issues of
grave importance from the deliberations of Congress upon the said issues. It is
not quite becoming of judicial magistrates to shunt aside a suggestion that the
interplay of legal provisions be carefully studied and analyzed.
In the deliberations of the Court on this case, I suggested that we examine the
possible delimiting effects of the provisions of the first sentence of section 5 of
the Decentralization Act on the provisions of the Anti-Graft and Corrupt Practices
Act insofar as the suspension from office of an elective local official is concerned.
In no uncertain words did I focus the attention of the Court on the serious everpresent possibility of harassment of an elective local official taking the form of the
filing of a valid information against him under the provisions of the Anti-Graft and
Corrupt Practices Act after his exoneration in an administrative case involving the
same offense.
I also pointedly brought out the matter of the notorious delay in the courts of
justice which could effectively frustrate an elected or re-elected local official from
discharging the duties of his office for the entire term of his office, and thus nullify
the will of the people who elected him. I likewise asked the Court to consider the
situation where an elective local official runs for the National Assembly and is
elected despite the fact that he is under suspension under the authority of the
provisions of the Anti-Graft and Corrupt Practices Act, and sought a definitive
answer to the question. What then would happen to the suspension meted out to
him since it is the National Assembly that determines whether he should assume
and continue in office?
All these and other germane questions were brushed aside by the majority of the
Court with the sweeping statement that the provisions of the Decentralization Act
apply only to administrative cases. It is the ex cathedra attitude, this kind of
slothful thinking, that I find abhorrent and therefore deplore " (Oliveros v. Villaluz,
57 SCRA 163, 197-198 [1974])
Petitioner Deloso was elected governor of the Province of Zambales in the January 18, 1988
local elections. The regular term of a governor is only 3 years although he shall serve until noon
of June 30, 1992 by special provision of the Constitution. (Section 8, Article X, Section 2, Article
XVIII, Constitution). He was, however, ordered suspended from performing his duties as
governor by the Sandiganbayan pursuant to Section 13 of Republic Act No. 3019 by virtue of
the criminal charges filed against him. The order of suspension does not have a definite period
so that the petitioner may be suspended for the rest of his term of office unless his case is
terminated sooner. An extended suspension is a distinct possibility considering that the
Sandiganbayan denied the petitioner's plea for earlier dates of trial of his cases on the ground
that there are other cases set earlier which have a right to expect priority.

Under these circumstances the preventive suspension which initially may be justified becomes
unreasonable thus raising a due process question. As we ruled in Layno, Sr. v. Sandiganbayan,
(supra):
Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term
of office does not expire until 1986. Were it not for this information and the
suspension decreed by the Sandiganbayan according to the Anti-Graft and
Corrupt Practices Act, he would have been all this while in the full discharge of
his functions as such municipal mayor. He was elected precisely to do so. As of
October 26, 1983, he has been unable to. It is a basic assumption of the electoral
process implicit in the right of suffrage that the people are entitled to the services
of elective officials of their choice. For misfeasance or malfeasance, any of them
could, of course, be proceeded against administratively or, as in this instance,
criminally. In either case, his culpability must be established. Moreover, if there
be a criminal action, he is entitled to the constitutional presumption of innocence.
A preventive suspension may be justified. Its continuance, however, for an
unreasonable length of time raises a due process question. For even if thereafter
he were acquitted, in the meanwhile his right to hold office had been nullified.
Clearly, there would be in such a case an injustice suffered by him. Nor is he the
only victim. There is injustice inflicted likewise on the people of Lianga. They
were deprived of the services of the man they had elected to serve as mayor. In
that sense, to paraphrase Justice Cardozo, the protracted continuance of this
preventive suspension had outrun the bounds of reason and resulted in sheer
oppression. A denial of due process is thus quite manifest. It is to avoid such an
unconstitutional application that the order of suspension should be lifted.
Moreover, in the earlier case of Garcia v. The Executive Secretary, (6 SCRA 1 [1962]) we ruled
on the issue as to whether the preventive suspension beyond the maximum period of 60 days,
provided in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) is illegal and void.
Paulino Garcia, the petitioner in the cited case was the Chairman of the National Science
Development Board appointed by the President of the Philippines. He was charged with
electioneering and dishonesty in office. Pending investigation of the administrative charges
against him, he was suspended by the Executive Secretary by authority of the President. In
view of his indefinite suspension, he filed a petition praying in effect that the 60-day period
prescribed in the Civil Service Law for preventive suspension having already expired, he be
reinstated in the service pursuant to Section 35 of the said Act. The respondents opposed the
petition on the ground that the petitioner was a presidential appointee and therefore not covered
by the 60-day preventive suspension limit under Section 35 of the then Civil Service Act. The
respondents maintained that the petitioner could be indefinitely suspended. In ruling in favor of
the petitioner, the Court stated:
To adopt the theory of respondents that an officer appointed by the President,
facing administrative charges can be preventively suspended indefinitely, would
be to countenance a situation where the preventive suspension can, in effect, be
the penalty itself without a finding of guilt after due hearing, contrary to the
express mandate of the Constitution (No officer or employee in the Civil Service
shall be removed or suspended except for cause as provided by law. [Art. XII,

Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No officer or
employee in the Civil Service shall be removed or suspended except for cause
as provided by law and after due process). ... In the guise of a preventive
suspension, his term of office could be shortened and he could, in effect, be
removed without a finding of a cause duly established after due hearing, in
violation of the Constitution ... (at pp. 8-9)
The question that now arises is whether or not the ruling in the Garcia case where the
suspension was ordered by no less than the President of the Philippines is applicable to an
elective official facing criminal charges under the Anti-Graft Law and suspended under Section
13, thereof.
The guarantee to an equal protection of the law necessitates the application of the ruling in
the Garcia v. Executive Secretary. Thus, we explained in the Layno case, to wit:
... If the case against petitioner Layno were administrative in character the Local
Government Code would be applicable. It is therein clearly provided that while
preventive suspension is allowable for the causes therein enumerated, there is
this emphatic limitation on the duration thereof; 'In all cases, preventive
suspension shall not extend beyond sixty days after the start of said suspension.'
(Batas Pambansa Blg. 337, Section 63 (2), last sentence. The first sentence
reads as follows: 'Preventive suspension may be imposed at any time after the
issues are joined, when there is reasonable ground to believe that the
respondent has committed the act or acts complained of, when the evidence of
culpability is strong, when the gravity of the offense so warrants, or when the
continuance in office of the respondent influence the witnesses or pose a threat
to the safety and integrity of the records and other evidence'). It may be recalled
that the principle against indefinite suspension applies equally to national
government officials. So it was held in the leading case of Garcia v. Hon.
Secretary (116 Phil. 348 [1962]). According to the opinion of Justice Barrera: 'To
adopt the theory of respondents that an officer appointed by the President, facing
administrative charges, can be preventively suspended indefinitely, would be to
countenance a situation where the preventive suspension can, in effect, be the
penalty itself without a finding of guilt after due hearing, contrary to the express
mandate of the Constitution and the Civil Service Law.' (Ibid. 351-352) Further:
'In the guise of a preventive suspension, his term of office could be shortened
and he could in effect, be removed without a finding of a cause duly established
after due hearing, in violation of the Constitution.' (Ibid. 352) Clearly then, the
policy of the law mandated by the Constitution frowns at a suspension of
indefinite duration. In this particular case, the mere fact that petitioner is facing a
charge under the Anti-Graft and Corrupt Practices Act does not justify a different
rule of law. To do so would be to negate the safeguard of the equal protection
guarantee. (at p. 542)
The application of the Garcia injunction against preventive suspensions for an unreasonable
period of time applies with greater force to elective officials and especially to the petitioner
whose term is a relatively short one. The interests of the sovereign electorate and the province

of Zambales cannot be subordinated to the heavy case load of the Sandiganbayan and of this
Court.
It would be most unfair to the people of Zambales who elected the petitioner to the highest
provincial office in their command if they are deprived of his services for an indefinite period with
the termination of his case possibly extending beyond his entire term simply because the big
number of sequestration, ill-gotten wealth, murder, malversation of public finds and other more
serious offenses plus incidents and resolutions that may be brought to the Supreme Court
prevents the expedited determination of his innocence or guilt.
The order dated February 10, 1989 suspending the petitioner without a definite period can not
be sanctioned. We rule that henceforth a preventive suspension of an elective public officer
under Section 13 of Republic Act 3019 should be limited to the ninety (90) days under Section
42 of Presidential Decree No. 807, the Civil Service Decree, which period also appears
reasonable and appropriate under the circumstances of this case.
The petitioner also questions the applicability of Section 13 of Republic Act 3019 as amended
by Batasan Pambansa Blg. 192 to him. He opines that the suspension provision as amended
which qualifies the public officer as incumbent does not apply to him since he is now occupying
the position of governor and not mayor, the position wherein he was charged under the AntiGraft Law.
This argument is untenable. The issue was settled in the case of Bayot v. Sandiganbayan (128
SCRA 383 (1984), in this wise:
... 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 or 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.
One last point. Should the purposes behind preventive suspensions such as preventing the
abuse of the prerogatives of the office, intimidation of witnesses, etc., become manifest, the
respondent court is not bereft of remedies or sanctions. The petitioner may still be suspended
but for specifically expressed reasons and not from an automatic application of Section 13 of the
Anti-Graft and Corrupt Practices Act.
WHEREFORE, the instant petition is GRANTED. The preventive suspension imposed on
petitioner Amor D. Deloso by virtue of the February 10, 1989 resolution of the Sandiganbayan
should be limited to only ninety (90) days after which Deloso will assume once again the
functions of governor of Zambales, without prejudice to the continuation of the trial of the

pending cases against him in the Sandiganbayan. This decision is immediately executory. No
costs.
SO ORDERED.

EN BANC
[G.R. No. 157036. June 9, 2004]
FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS
EXECUTIVE SECRETARY; DIRECTOR GENERAL HERMOGENES E. EBDANE, JR.,
IN HIS CAPACITY AS THE CHIEF OF THE PNP, et al., respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
The right of individuals to bear arms is not absolute, but is subject to regulation. The
maintenance of peace and order[1] and the protection of the people against violence are
constitutional duties of the State, and the right to bear arms is to be construed in connection and
in harmony with these constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of
the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane,
Jr., Chief of the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the
members of the PNP stressing the need for a nationwide gun ban in all public places to avert
the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend
the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus:
THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO
DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST
BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND WE
ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE BAR OF
JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR LAW
ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM, AND
ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE ISSUANCE OF
PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE ISSUANCE OF PERMITS WILL
NOW BE LIMITED ONLY TO OWNERSHIP AND POSSESSION OF GUNS AND NOT TO
CARRYING THEM IN PUBLIC PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN
THE MILITARY AND AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY
FIREARMS IN PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN
OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR

RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET PRACTICE WILL
BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME TO TIME ONLY FOR THAT
PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS WITH BULLETS UNTIL THEY ARE
IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE
CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE.
Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines
quoted as follows:
TO

All Concerned

FROM

Chief, PNP

SUBJECT

DATE

:
1.

2.

Guidelines in the Implementation of the Ban on the Carrying of


Firearms Outside of Residence.

January 31, 2003


Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and
Regulations.

General:
The possession and carrying of firearms outside of residence is a privilege
granted by the State to its citizens for their individual protection against all threats
of lawlessness and security.
As a rule, persons who are lawful holders of firearms (regular license, special
permit, certificate of registration or MR) are prohibited from carrying their firearms
outside of residence. However, the Chief, Philippine National Police may, in
meritorious cases as determined by him and under conditions as he may impose,
authorize such person or persons to carry firearms outside of residence.

3.

Purposes:
This Memorandum prescribes the guidelines in the implementation of the ban on
the carrying of firearms outside of residence as provided for in the
Implementing Rules and Regulations, Presidential Decree No. 1866, dated
June 29, 1983 and as directed by PGMA. It also prescribes the conditions,
requirements and procedures under which exemption from the ban may be
granted.
4.

Specific Instructions on the Ban on the Carrying of Firearms:

a. All PTCFOR are hereby revoked. Authorized holders of licensed


firearms covered with valid PTCFOR may re-apply for a new PTCFOR in
accordance with the conditions hereinafter prescribed.
b. All holders of licensed or government firearms are hereby prohibited
from carrying their firearms outside their residence except those
covered with mission/letter orders and duty detail orders issued by
competent authority pursuant to Section 5, IRR, PD 1866, provided, that
the said exception shall pertain only to organic and regular employees.
5.

The following persons may be authorized to carry firearms outside of


residence.
a. All persons whose application for a new PTCFOR has been approved,
provided, that the persons and security of those so authorized are under
actual threat, or by the nature of their position, occupation and profession are
under imminent danger.
b. All organic and regular employees with Mission/Letter Orders granted by their
respective agencies so authorized pursuant to Section 5, IRR, PD 1866,
provided, that such Mission/Letter Orders is valid only for the duration of the
official mission which in no case shall be more than ten (10) days.
c. All guards covered with Duty Detail Orders granted by their respective
security agencies so authorized pursuant to Section 4, IRR, PD 1866,
provided, that such DDO shall in no case exceed 24-hour duration.
d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by
the PNP for purposes of practice and competition, provided, that such
firearms while in transit must not be loaded with ammunition and secured in
an appropriate box or case detached from the person.
e. Authorized members of the Diplomatic Corps.

6.

Requirements for issuance of new PTCFOR:


a. Written request by the applicant addressed to Chief, PNP stating his
qualification to possess firearm and the reasons why he needs to carry
firearm outside of residence.
b. Xerox copy of current firearm license duly authenticated by Records Branch,
FED;
c. Proof of actual threat, the details of which should be issued by the Chief of
Police/Provincial or City Directors and duly validated by C, RIID;

d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center,
if photocopied;
e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;
f.

Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing


Center, if photocopied;

g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by


Chief, Operations Branch, FED;
h. NBI Clearance;

7.

i.

Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of
filing of application; and

j.

Proof of Payment

Procedures:
a. Applications may be filed directly to the Office of the PTCFOR Secretariat in
Camp Crame. In the provinces, the applications may also be submitted to
the Police Regional Offices (PROs) and Provincial/City Police Offices
(P/CPOs) for initial processing before they are forwarded to the office of the
PTCFOR Secretariat. The processors, after ascertaining that the
documentary requirements are in order, shall issue the Order of Payment
(OP) indicating the amount of fees payable by the applicant, who in turn shall
pay the fees to the Land Bank.
b. Applications, which are duly processed and prepared in accordance with
existing rules and regulations, shall be forwarded to the OCPNP for approval.
c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1)
year from date of issue.
d. Applications for renewal of PTCFOR shall be processed in accordance with
the provisions of par. 6 above.
e. Application for possession and carrying of firearms by diplomats in the
Philippines shall be processed in accordance with NHQ PNP Memo dated
September 25, 2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines.

8.

Restrictions in the Carrying of Firearms:


a. The firearm must not be displayed or exposed to public view, except those
authorized in uniform and in the performance of their official duties.

b. The firearm shall not be brought inside public drinking and amusement
places, and all other commercial or public establishments.
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the
present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as
Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives
Division. He anchored his petition on the following grounds:
I
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH
TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN AND
CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE
PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN BAN;
THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE PEOPLES
RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED
GUIDELINES BECAUSE:
1)
THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP
CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.

2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE


SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
3)
THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF
IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE
AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO
ISSUE THE SAME BECAUSE
1)
PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE
PROMULGATED JOINTLY BY THE DOJ AND THE DILG.

2)
SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF
OF THE PHILIPPINE CONSTABULARY.
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION
BECAUSE:
1)
THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED WITH
THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE PNP
GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS OF LAW
FOR:
A)
THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS
ONLY, MEANS TO DEFEND HIMSELF.
B)
THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF
PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT
POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY OF
THE POLICE FORCE.
2)
THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE
PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE EXERCISE
OF POLICE POWER, THE SAME IS AN INVALID EXERCISE THEREOF SINCE THE MEANS
USED THEREFOR ARE UNREASONABLE AND UNNCESSARY FOR THE
ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND PREVENT CRIME THEREBY
BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING GUN-OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT
REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING THE
PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO LAWABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE LAWBREAKERS
(KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF COLLECTIVELY,
AND NPA) UNTOUCHED.

IX
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY WERE
IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY APPLY
RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED PERMITS
TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR PROMULGATION.
Petitioners submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens right to bear arms is a constitutional right?;
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a
violation of his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?;
and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of
hierarchy of courts. Nonetheless, in refutation of petitioners arguments, he contends
that: (1) the PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not
have a constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate
the due process clause of the Constitution; and (4) the assailed Guidelines do not constitute
an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the
doctrine is not an iron-clad dictum. In several instances where this Court was confronted with
cases of national interest and of serious implications, it never hesitated to set aside the rule and
proceed with the judicial determination of the cases. [3] The case at bar is of similar import as it
involves the citizens right to bear arms.
I
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that only Congress can
withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and

respondent Ebdane transgressed the settled principle and arrogated upon themselves a power
they do not possess the legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government are distributed
among three coordinate and substantially independent departments: the legislative, the
executive and the judiciary. Each has exclusive cognizance of the matters within its jurisdiction
and is supreme within its own sphere.[4]
Pertinently, the power to make laws the legislative power is vested in Congress.
Congress may not escape its duties and responsibilities by delegating that power to any other
body or authority. Any attempt to abdicate the power is unconstitutional and void, on the
principle that delegata potestas non potest delegari delegated power may not be
delegated.[6]
[5]

The rule which forbids the delegation of legislative power, however, is not absolute
and inflexible. It admits of exceptions. An exception sanctioned by immemorial practice
permits the legislative body to delegate its licensing power to certain persons, municipal
corporations, towns, boards, councils, commissions, commissioners, auditors, bureaus and
directors.[7] Such licensing power includes the power to promulgate necessary rules and
regulations.[8]
The evolution of our laws on firearms shows that since the early days of our Republic, the
legislatures tendency was always towards the delegation of power. Act No. 1780, [9] delegated
upon the Governor-General (now the President) the authority (1) to approve or disapprove
applications of any person for a license to deal in firearms or to possess the same for personal
protection, hunting and other lawful purposes; and (2) to revoke such license any time.
[10]
Further, it authorized him to issue regulations which he may deem necessary for the proper
enforcement of the Act. [11] With the enactment of Act No. 2711, the Revised Administrative
Code of 1917, the laws on firearms were integrated. [12] The Act retained the authority of the
Governor General provided in Act No. 1780. Subsequently, the growing complexity in the Office
of the Governor-General resulted in the delegation of his authority to the Chief of the
Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater issued
Executive Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his behalf
inapproving and disapproving applications for personal, special and hunting
licenses. This was followed by Executive Order No. 61[14] designating the Philippine
Constabulary (PC) as the government custodian of all firearms, ammunitions and
explosives. Executive Order No. 215,[15] issued by President Diosdado Macapagal on
December 3, 1965, granted the Chief of the Constabulary, not only the authority to approve or
disapprove applications for personal, special and hunting license, but also the authority to
revoke the same. With the foregoing developments, it is accurate to say that the Chief of the
Constabulary had exercised the authority for a long time. In fact, subsequent issuances such as
Sections 2 and 3 of the Implementing Rules and Regulations of Presidential Decree No.
1866[16] perpetuate such authority of the Chief of the Constabulary. Section 2 specifically
provides that any person or entity desiring to possess any firearm shall first secure the
necessary permit/license/authority from the Chief of the Constabulary. With regard to the

issuance of PTCFOR, Section 3 imparts: The Chief of Constabulary may, in meritorious


cases as determined by him and under such conditions as he may impose, authorize
lawful holders of firearms to carry them outside of residence. These provisions are issued
pursuant to the general power granted by P.D. No. 1866 empowering him to promulgate
rules and regulations for the effective implementation of the decree.[17] At this juncture, it
bears emphasis that P.D. No. 1866 is the chief law governing possession of firearms in the
Philippines and that it was issued by President Ferdinand E. Marcos in the exercise of his
legislative power.[18]
In an attempt to evade the application of the above-mentioned laws and regulations,
petitioner argues that the Chief of the PNP is not the same as the Chief of the Constabulary,
the PC being a mere unit or component of the newly established PNP. He contends further that
Republic Act No. 8294[19] amended P.D. No. 1866 such that the authority to issue rules and
regulations regarding firearms is now jointly vested in the Department of Justice and the DILG,
not the Chief of the Constabulary.[20]
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the
Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the
Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof
specifies, as one of PNPs powers, the issuance of licenses for the possession of
firearms and explosives in accordance with law.[22] This is in conjunction with the PNP
Chiefs power to issue detailed implementing policies and instructions on such matters as
may be necessary to effectively carry out the functions, powers and duties of the PNP.[23]
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the
Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the
effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D.
No. 1866. It merely provides for the reduction of penalties for illegal possession of
firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the
authority to issue rules and regulations regarding firearms remains effective. Correspondingly,
the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the
Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with the
automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or
city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect
to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and
reintegration of the convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the
assailed guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban,
arguing that she has no authority to alter, modify, or amend the law on firearms through a mere
speech.

First, it must be emphasized that President Arroyos speech was just an expression of her
policy and a directive to her subordinate. It cannot, therefore, be argued that President Arroyo
enacted a law through a mere speech.
Second, at the apex of the entire executive officialdom is the President. Section 17, Article
VII of the Constitution specifies his power as Chief Executive, thus: The President shall have
control of all the executive departments, bureaus and offices. He shall ensure that the
laws be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel
that controls the course of her government. She lays down policies in the execution of her plans
and programs. Whatever policy she chooses, she has her subordinates to implement them. In
short, she has the power of control. Whenever a specific function is entrusted by law or
regulation to her subordinate, she may act directly or merely direct the performance of a
duty.[24] Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of
PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well
within the prerogative of her office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right.
This, he mainly anchors on various American authorities. We therefore find it imperative to
determine the nature of the right in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and American society. It
antedates not only the American Constitution but also the discovery of firearms.[25]
A provision commonly invoked by the American people to justify their possession of
firearms is the Second Amendment of the Constitution of the United States of America, which
reads:
A well regulated militia, being necessary for the security of free state, the right of the people to
keep and bear Arms, shall not be infringed.
An examination of the historical background of the foregoing provision shows that it pertains
to the citizens collective right to take arms in defense of the State, not to the citizens
individual right to own and possess arms. The setting under which the right was contemplated
has a profound connection with the keeping and maintenance of a militia or an armed
citizenry. That this is how the right was construed is evident in early American cases.
The first case involving the interpretation of the Second Amendment that reached the
United States Supreme Court is United States vs. Miller.[26] Here, the indictment charged the
defendants with transporting an unregistered Stevens shotgun without the required stamped
written order, contrary to the National Firearms Act. The defendants filed a demurrer
challenging the facial validity of the indictment on the ground that the National Firearms
Act offends the inhibition of the Second Amendment. The District Court sustained the demurrer
and quashed the indictment. On appeal, the Supreme Court interpreted the right to bear

arms under the Second Amendment as referring to the collective right of those
comprising the Militia a body of citizens enrolled for military discipline. It does not
pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:
In the absence of any evidence tending to show that possession or use of a shotgun having a
barrel of less than eighteen inches in length at this time has some reasonable relationship to
the preservation or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary military equipment or that its
use could contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of
Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the
Second Amendment. It ruled that:
While [appellants] weapon may be capable of military use, or while at least familiarity with it
might be regarded as of value in training a person to use a comparable weapon of military type
and caliber, still there is no evidence that the appellant was or ever had been a member of
any military organization or that his use of the weapon under the circumstances
disclosed was in preparation for a military career. In fact, the only inference possible is
that the appellant at the time charged in the indictment was in possession of,
transporting, and using the firearm and ammunition purely and simply on a frolic of his
own and without any thought or intention of contributing to the efficiency of the well
regulated militia which the Second amendment was designed to foster as necessary to
the security of a free state.
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants
upon the American people the right to bear arms. In a more explicit language, the United States
vs. Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right
granted by the Constitution. Neither is it in any way dependent upon that
instrument. Likewise, in People vs. Persce,[29] the Court of Appeals said: Neither is there any
constitutional provision securing the right to bear arms which prohibits legislation with reference
to such weapons as are specifically before us for consideration. The provision in the
Constitution of the United States that the right of the people to keep and bear arms shall
not be infringed is not designed to control legislation by the state.
With more reason, the right to bear arms cannot be classified as fundamental under the
1987 Philippine Constitution. Our Constitution contains no provision similar to the Second
Amendment, as we aptly observed in the early case of United States vs. Villareal:[30]
The only contention of counsel which would appear to necessitate comment is the claim that
the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the
use of firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill
of Rights.
Counsel does not expressly rely upon the prohibition in the United States Constitution
against the infringement of the right of the people of the United States to keep and bear

arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But
it may be well, in passing, to point out that in no event could this constitutional guaranty
have any bearing on the case at bar, not only because it has not been expressly extended
to the Philippine Islands, but also because it has been uniformly held that both this and
similar provisions in State constitutions apply only to arms used in civilized warfare (see
cases cited in 40 Cyc., 853, note 18); x x x.
Evidently, possession of firearms by the citizens in the Philippines is the exception,
not the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is
a mere statutory creation. What then are the laws that grant such right to the
Filipinos? The first real firearm law is Act No. 1780 enacted by the Philippine Commission on
October 12, 1907. It was passed to regulate the importation, acquisition, possession, use and
transfer of firearms. Section 9 thereof provides:
SECTION 9. Any person desiring to possess one or more firearms for personal
protection, or for use in hunting or other lawful purposes only, and ammunition therefor,
shall make application for a license to possess such firearm or firearms or ammunition
as hereinafter provided. Upon making such application, and before receiving the license, the
applicant shall make a cash deposit in the postal savings bank in the sum of one hundred pesos
for each firearm for which the license is to be issued, or in lieu thereof he may give a bond in
such form as the Governor-General may prescribe, payable to the Government of the Philippine
Islands, in the sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That
persons who are actually members of gun clubs, duly formed and organized at the time of the
passage of this Act, who at such time have a license to possess firearms, shall not be required
to make the deposit or give the bond prescribed by this section, and the bond duly executed by
such person in accordance with existing law shall continue to be security for the safekeeping of
such arms.
The foregoing provision was restated in Section 887 [31] of Act No. 2711 that integrated the
firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the
laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or
explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the
provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory
creation, the right to bear arms cannot be considered an inalienable or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that no person shall be deprived of life,
liberty or property without due process of law. Petitioner invokes this provision, asserting that
the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested
property right without due process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.

In evaluating a due process claim, the first and foremost consideration must be whether life,
liberty or property interest exists.[32] The bulk of jurisprudence is that a license authorizing a
person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The
Director of Forestry,[33] we ruled that a license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between the authority granting it and the
person to whom it is granted; neither is it property or a property right, nor does it create a
vested right. In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr.[34] that:
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is
not a contract, property or a property right protected by the due process clause of the
Constitution.
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied
heavily on Bell vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is
issued, continued possession may become essential in the pursuit of livelihood. Suspension of
issued licenses thus involves state action that adjudicates important interest of the licensees.
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a
license to bear arms. The catena of American jurisprudence involving license to bear arms is
perfectly in accord with our ruling that a PTCFOR is neither a property nor a property
right. In Erdelyi vs. OBrien,[36] the plaintiff who was denied a license to carry a firearm brought
suit against the defendant who was the Chief of Police of the City of Manhattan Beach, on the
ground that the denial violated her constitutional rights to due process and equal protection of
the laws. The United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a
property interest in obtaining a license to carry a firearm, ratiocinating as follows:
Property interests protected by the Due Process Clause of the Fourteenth Amendment
do not arise whenever a person has only an abstract need or desire for, or unilateral
expectation of a benefit. x x x Rather, they arise from legitimate claims of entitlement
defined by existing rules or understanding that stem from an independent source, such
as state law. x x x
Concealed weapons are closely regulated by the State of California. x x x Whether the statute
creates a property interest in concealed weapons licenses depends largely upon the
extent to which the statute contains mandatory language that restricts the discretion of
the [issuing authority] to deny licenses to applicants who claim to meet the minimum
eligibility requirements. x x x Where state law gives the issuing authority broad
discretion to grant or deny license application in a closely regulated field, initial
applicants do not have a property right in such licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);
Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs. King,
[38]
Nichols vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated that the
test whether the statute creates a property right or interest depends largely on the extent of
discretion granted to the issuing authority.

In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of
PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No.
1866 which state that the Chief of Constabulary may, in meritorious cases as determined by
him and under such conditions as he may impose, authorize lawful holders of firearms to
carry them outside of residence. Following the American doctrine, it is indeed logical to say
that a PTCFOR does not constitute a property right protected under our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be
revoked any time. It does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions, and such as may thereafter be reasonably imposed. [41] A
licensee takes his license subject to such conditions as the Legislature sees fit to impose, and
one of the statutory conditions of this license is that it might be revoked by the selectmen at
their pleasure. Such a license is not a contract, and a revocation of it does not deprive the
defendant of any property, immunity, or privilege within the meaning of these words in
the Declaration of Rights.[42] The US Supreme Court, in Doyle vs. Continental Ins. Co,[43] held:
The correlative power to revoke or recall a permission is a necessary consequence of
the main power. A mere license by the State is always revocable.
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus,
in The Government of the Philippine Islands vs. Amechazurra[44] we ruled:
x x x no private person is bound to keep arms. Whether he does or not is entirely optional with
himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so
upon such terms as the Government sees fit to impose, for the right to keep and bear arms is
not secured to him by law. The Government can impose upon him such terms as it pleases. If
he is not satisfied with the terms imposed, he should decline to accept them, but, if for the
purpose of securing possession of the arms he does agree to such conditions, he must fulfill
them.
IV
Police Power
At any rate, assuming that petitioners PTCFOR constitutes a property right protected by
the Constitution, the same cannot be considered as absolute as to be placed beyond the reach
of the States police power. All property in the state is held subject to its general regulations,
necessary to the common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure,
thus:
(1) The interests of the public generally, as distinguished from those of a particular class,
require the exercise of the police power; and
(2) The means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.

Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
guarantees of substantive due process, equal protection, and non-impairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for
peace and order in the society. Owing to the proliferation of crimes, particularly those
committed by the New Peoples Army (NPA), which tends to disturb the peace of the community,
President Arroyo deemed it best to impose a nationwide gun ban. Undeniably, the motivating
factor in the issuance of the assailed Guidelines is the interest of the public in general.
The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In
the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What
they proscribe is merely the carrying of firearms outside of residence. However, those who wish
to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we
believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime
incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not wait
in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for
criminals to roam around with their guns. On the other hand, it would be easier for the PNP to
apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been upheld
as reasonable exercise of the police power.[45] In State vs. Reams,[46] it was held that the
legislature may regulate the right to bear arms in a manner conducive to the public peace. With
the promotion of public peace as its objective and the revocation of all PTCFOR as the means,
we are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise
of police power. The ruling in United States vs. Villareal,[47] is relevant, thus:
We think there can be no question as to the reasonableness of a statutory regulation
prohibiting the carrying of concealed weapons as a police measure well calculated to restrict the
too frequent resort to such weapons in moments of anger and excitement. We do not doubt that
the strict enforcement of such a regulation would tend to increase the security of life and limb,
and to suppress crime and lawlessness, in any community wherein the practice of carrying
concealed weapons prevails, and this without being unduly oppressive upon the individual
owners of these weapons. It follows that its enactment by the legislature is a proper and
legitimate exercise of the police power of the state.
V
Ex post facto law
In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an
action done before the passing of the law and which was innocent when done criminal, and
punishes such action; or (b) which aggravates a crime or makes it greater than it was when
committed; or (c) which changes the punishment and inflicts a greater punishment than the law
annexed to the crime when it was committed; or (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.

We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.[49] The assailed Guidelines cannot be considered as an ex post
facto law because it is prospective in its application. Contrary to petitioners argument, it would
not result in the punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.