[A.M. No. RTJ-06-2011. August 7, 2006.

[formerly OCA I.P.I. No. 04-2083-RTJ]

IMELDA S. ENRIQUEZ, petitioner, vs. JUDGE OLEGARIO R. SARMIENTO, JR., respondent.

DECISION

CARPIO MORALES, J p:

The facts that gave rise to the filing of the present administrative case, as culled from the
rollo, follow:

Following the death in Cebu City of one Mark James Enriquez on July 21, 2003, Cebu City
Prosecutor Jesus P. Feliciano filed before the Regional Trial Court (RTC) of Cebu on July 23,
2003 an Information 1 charging Sherwin Que a.k.a. Bungol, a certain Junjun, and nine Does
with Murder. cCESaH

Warrants for the arrest 2 of Sherwin Que a.k.a. Bungol, John Doe, Peter Doe, Paul Doe,
Richard Doe, Arnold Doe, Dexter Doe, James Doe, Robert Doe, and Arthur Doe were
thereupon issued by the Executive Judge of the Cebu RTC.

On the invitation 3 of the 7th Regional Criminal Investigation and Detection Group Unit
(CIDGU) at Camp Sotero Cabahug in Cebu City, Anthony John Apura (Apura), accompanied
by his father, repaired to said office on August 1, 2003.

An "Inquest Investigation" of Apura was conducted on August 2, 2003, a Saturday, by a

prosecutor who recommended the impleading of Apura as co-accused in the case. A warrant
for Apura's arrest was on even date issued by Judge Apolinario Taypin, Presiding Judge of
Branch 12 of the Cebu RTC, who was on duty that day. 4 Apura was immediately arrested
and detained. THESAD

Apura assailed the legality of his arrest via a "Motion to Dismiss" the Information, which he
filed on August 5, 2003 before Branch 24 of the Cebu RTC to which the case was raffled.

By Order of August 13, 2003, Branch 24 Presiding Judge Olegario R. Sarmiento, Jr., herein
respondent, "believ[ing] that there [wa]s lack of preliminary investigation," ordered the
remand of the case against Apura to the Cebu City Prosecutor's Office for preliminary
investigation, and ordered Apura's release from custody on a bail of P20,000. Respondent's
said Order reads:

Accused-movant Anthony John Apura alleged in his Motion to Dismiss that his arrest was
illegal because he [went] to the police station upon invitation but immediately thereafter he
was placed under custody of the police. His arrest does not fall under a warrantless arrest
nor it is within the purview of "hot pursuit" concept, considering that the subject incident
happened on July 19, 2003 and he was placed under arrest on August 2, 2003.

The Court believes that there is lack of preliminary investigation on the part of accused
Anthony John Apura. The warrant of arrest issued on July 24, 2003 on the basis of the
original information filed on July 24, 2003 cannot be made as valid basis for the arrest of
the accused Anthony John Apura on August 2, 2003. The court notes that accused Anthony
John Apura is not the certain "Junjun" mentioned in the original Information. DEIHSa

What appalled the Court is the manner by which the accused was placed under custody. The
actuation wherein a person is invited to the police station for investigation and to place said
person under detention when his appearance therein was only to explain his side thereof, is
foreboding.

WHEREFORE, short of declaring the arrest of movant illegal, and acting on the
Motion to Dismiss, remand this case to the Cebu City Prosecution Office for
Prosecutor Jesus Feliciano to conduct preliminary investigation on Anthony John
Apura and said accused is ordered released from custody, being admitted to bail in
the amount of PhP 20,000.000 in cash, pending preliminary investigation,
pursuant to Section 7 of Rule 112.

Furnish parties and counsels copy of this Order and Prosecutor Feliciano, who is directed to
submit his preliminary investigation report sixty (60) days from today. 5 (Emphasis and
underscoring supplied)

Hence, arose the present administrative complaint filed on September 7, 2004 by petitioner
Imelda S. Enriquez, the mother of the deceased Mark James Enriquez, against respondent
for knowingly rendering an unjust order and gross ignorance of the law and procedure for
ordering the release of Apura on bail without first conducting a hearing for the purpose.
ACEIac

To the complaint, respondent gives the following comment:

Respondent judge was trying to check the abuse committed by the State through its law
enforcement agency upon the rights of an accused person guaranteed to him by no less
than the Constitution. The inquest proceedings which followed . . . the "invitation" was [sic]
highly irregular. The prosecutors knew this fact, which is why, during the hearing on the
"Motion to Dismiss", they agreed for [sic] the remand of the record for preliminary
investigation.

Had he granted the Motion to Dismiss, on the ground that the trial court did not acquire
jurisdiction over the person of Apura because of the illegal arrest, accused would be
released just the same. Yet, to strike a balance of the possible abuse on the rights of
accused and the effort of the police at prosecution of crimes, respondent did not
categorically declare the arrest illegal but allowed the accused to post cash bail bond with
an accompanying "hold-departure" order. At least, to get hold of the accused while
preliminary investigation is conducted. 6 (Emphasis and underscoring supplied) HSaIET

By Report dated October 4, 2005, the Office of the Court Administrator (OCA), finding that
respondent violated Section 7, Rule 114 of the Revised Rules of Criminal Procedure reading:

SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal prosecution,
recommended that respondent be fined in the amount of P21,000 for gross ignorance of the
law. 7

By Resolution 8 dated December 14, 2005, this Court ordered the parties to manifest
whether they are submitting the case on the basis of the pleadings/records already filed and
submitted, within ten days from notice. Respondent responded in the affirmative in a
Manifestation 9 received on January 27, 2006 to which he attached additional papers in
support of his case. On petitioner's part, she also responded in the affirmative by
Manifestation 10 received on January 31, 2006. DIETHS

An application to bail from Murder, for which Apura was indicted on August 2, 2003 when it
was a capital offense, 11 now punishable by reclusion perpetua, calls for a hearing, as called
for under Section 8 of Rule 114 reading:

SEC. 8. Burden of proof in bail application. At the hearing of an application for bail
filed by a person who is in custody of the commission of an offense punishable by death,
reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that
evidence of guilt is strong. The evidence presented during the bail hearing shall be
considered automatically reproduced at the trial but, upon motion of either party, the court
may recall any witness for additional examination unless the latter is dead, outside the
Philippines, or otherwise unable to testify. (Italics in the original),

in order to determine whether the evidence of guilt against the accused is strong. 12

In the case at bar, respondent ordered Apura to be released on bail, without conducting a
prior hearing.

The lack of preliminary investigation, in light of the finding that Apura was not lawfully
arrested without warrant, he having gone to the CIDGU in response to its invitation, did not
justify respondent's disregard of the mandatory procedure governing the grant of bail.
aHTDAc

Indeed, a preliminary investigation should have been conducted before the filing of the
Amended Information. A preliminary investigation is a proceeding distinct from an inquest.
A preliminary investigation is "an inquiry or proceeding to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial." 13 An inquest is "a
summary inquiry conducted by a prosecutor for the purpose of determining whether the
warrantless arrest of a person was based on probable cause." 14

Where the penalty prescribed by law for an offense is at least four years, two months and
one day of imprisonment without regard to the fine, a preliminary investigation must be
conducted before the filing of a complaint or information for such offense. 15 The conduct of
an inquest investigation does not fulfill the requirement for the conduct of a preliminary
investigation before the filing of an information or complaint involving any such offenses,
except when the accused was lawfully arrested without a warrant. 16
In the case at bar, the accused was not even arrested. He repaired to the CIDGU on its
invitation. He should thus have been subjected to a preliminary investigation, not a mere
inquest investigation. 17

An Amended Information was subsequently filed, however, upon which a Warrant of Arrest
was issued against Apura by Judge Taypin. By so issuing a warrant, Judge Taypin is
presumed to have, before issuing the warrant, previously regularly discharged his duty to
personally determine the existence of probable cause against the accused, as mandated by
Section 6 of Rule 112, which provides: TSIDEa

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish probable
cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order
if the accused has already been arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the complaint or information was filed
pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the
judge may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the filing of
the complaint or information.

xxx xxx xxx (Underscoring supplied)

At all events, the absence of a preliminary investigation did not justify Apura's release, the
defect not having nullified the information and the warrant of arrest against him. Thus this
Court held in Larranaga v. CA: 18

We hold, therefore, that petitioner's detention at the Bagong Buhay Rehabilitation Center is
legal in view of the information and the warrant of arrest against him. The absence of a
preliminary investigation will not justify petitioner's release because such defect did not
nullify the information and the warrant of arrest against him. We ruled in Sanciangco, Jr. v.
People: 19

The absence of preliminary investigations does not affect the court's jurisdiction over the
case. Nor do they impair the validity of the information or otherwise render it defective; but,
if there were no preliminary investigations and the defendants, before entering their plea,
invite the attention of the court to their absence, the court, instead of dismissing the
information, should conduct it or remand the case to the inferior court so that the
preliminary investigation may be conducted. (Citation omitted)

In fine, respondent's release on bail of Apura, without priorly conducting a hearing for the
purpose, betrays his gross ignorance of the law, it being settled that where the law involved
is simple and elementary, lack of observance thereof constitutes gross ignorance of the law.
20

Gross ignorance of the law may be punished with dismissal from the service, forfeiture of all
or part of the benefits as the Court may determine, and disqualification from reinstatement
or appointment to any public office, including government-owned or controlled corporations;
suspension from office without salary and other benefits for more than three (3) but not
exceeding six (6) months; or a fine of more than P20,000 but not exceeding P40.000. 21

This Court, however, appreciates as mitigating in respondent's favor his issuance of a hold-
departure order against the accused. 22 It is in this light that it reduces the recommended
penalty of fine to P15,000. aIHSEc

WHEREFORE, respondent, Judge Olegario R. Sarmiento, Jr., is found guilty of gross

ignorance of the law and is FINED Fifteen Thousand (P15,000) Pesos, with WARNING that a
repetition of the same or similar infraction shall be dealt with more severely.

SO ORDERED.

[G.R. No. 115407. August 28, 1995.]

MIGUEL P. PANDERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE

PHILIPPINES, respondents.

Concordio C. Diel, Guerrero A. Adaza, Juanito Dela Riarte, Gael Paderanga, and Alfredo J.
Lagamon for petitioner.

The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; RULE; RATIONALE. Section 1 of

Rule 114, as amended, defines bail as the security given for the release of a person in
custody of the law, furnished by him or a bondsman, conditioned upon his appearing before
any court as required under the conditions specified in said Rule. Its main purpose, then, is
to relieve an accused from the rigors of imprisonment until his conviction and yet secure his
appearance at the trial. (Almeda vs. Villaluz, etc., et al., L-31665, August 6, 1975, 66 SCRA
38.) As bail is intended to obtain or secure one's provisional liberty, the same cannot be
posted before custody over him has been acquired by the judicial authorities, either by his
lawful arrest or voluntary surrender. (Santiago vs. Vasquez, etc., et al., G.R. Nos. 99289-
90, January 27, 1993, 217 SCRA 633.) As this Court has put it in a case, "it would be
incongruous to grant bail to one who is free." (Mendoza vs. Court of First Instance of
Quezon, etc., et al., L-35612-14, June 27, 1973, 51 SCRA 369.) The rationale behind the
rule is that it discourages and prevents resort to the former pernicious practice whereby an
accused could just send another in his stead to post his bail, without recognizing the
jurisdiction of the court by his personal appearance therein and compliance with the
requirements therefor. (Aguirre et al. vs. Belmonte, etc., A.M. No. RTJ-93-1052, October
27, 1994, 237 SCRA 778.)

2. ID.; ID.; ID.; REQUISITE. As a paramount requisite, only those persons who have
either been arrested, detained, or otherwise deprived of their freedom will ever have
occasion to seek the protective mantle extended by the right to bail. The person seeking his
provisional release under the auspices of bail need not even wait for a formal complaint or
information to be filed against him as it is available to "all persons" (De la Camara vs.
Enage, etc., L-32951-2, September 17, 1971, 41 SCRA 1.) where the offense is bailable.
This rule is, of course, subject to the condition or limitation that the applicant is in the
custody of the law. (Herras Teehankee vs. Rovira, et al., 75 Phil. 634 [1945].) A person is
considered to be in the custody of the law (a) when he is arrested either by virtue of a
warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under
Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal
Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court
by surrendering to the proper authorities. (Dinapol vs. Baldado, etc., A.M. No. RTJ-92-898,
August 5, 1993, 225 SCRA 110.)

3. CONSTITUTIONAL LAW; RIGHT TO BAIL; WHEN AVAILABLE. Section 13, Article III
of the Constitution lays down the rule that before conviction, all indictees shall be allowed
bail, except only those charged with offenses punishable by reclusion perpetua when the
evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now
provides that all persons in custody shall, before conviction by a regional trial court of an
offense not punishable by death, reclusion perpetua or life imprisonment, be admitted to
bail as a matter of right. The right to bail, which may be waived considering its personal
nature (People vs. Donato, etc., et al., G.R. No. 79269, June 5, 1991, 198 SCRA 130.) and
which, to repeat, arises from the time one is placed in the custody of the law, springs from
the presumption of innocence accorded every accused upon whom should not be inflicted
incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt
be established beyond reasonable doubt. (De la Camara vs. Enage, etc., L-32951-2,
September 17, 1971, 41 SCRA 1.)

4. ID.; ID.; ID.; RULE AND EXCEPTION. The general rule is that prior to conviction
by the regional trial court of a criminal offense, an accused is entitled to be released on bail
as a matter of right, the present exceptions thereto being the instances where the accused
is charged with a capital offense or an offense punishable by reclusion perpetua or life
imprisonment (Sec. 7, Rule 114, as amended; see also Borinaga vs. Tamin, etc., A.M No.
RTJ-93-936, September 10, 1993, 226 SCRA 206.) and the evidence of guilt is strong.

5. ID.; ID.; ID.; PROCEDURE FOLLOWED. Under said general rule, upon proper
application for admission to bail, the court having custody of the accused should, as a
matter of course, grant the same after a hearing conducted to specifically determine the
conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the
other hand, as the grant of bail becomes a matter of judicial discretion on the part of the
court under the exceptions to the rule, a hearing, mandatory in nature and which should be
summary or otherwise in the discretion of the court, (Go vs. Court of Appeals, et al., G.R.
No. 106087, April 7, 1993, 221 SCRA 397; Aurillo, Jr. vs. Francisco, etc., et al., A.M. No.
RTJ-93-1097, August 12, 1994, 235 SCRA 283.) is required with the participation of both
the defense and a duly notified representative of the prosecution, this time to ascertain
whether or not the evidence of guilt is strong for the provisional liberty of the applicant.
(Borinaga vs. Tamin, etc.) Of course, the burden of proof is on the prosecution to show that
the evidence meets the required quantum (Section 8, Rule 114, as amended.) Where such a
hearing is set upon proper motion or petition, the prosecution must be given an opportunity
to present, within a reasonable time, all the evidence that it may want to introduce before
the court may resolve the application, since it is equally entitled as the accused to due
process. (People vs. Dacudao, etc., et al., G.R. No. 81389, February 21, 1989, 170 SCRA
489.) If the prosecution is denied this opportunity, there would be a denial of procedural
due process, as a consequence of which the court's order in respect of the motion or
petition is void. (People vs. San Diego, etc., et al., L-29676, December 24, 1968, 26 SCRA
523.) At the hearing, the petitioner can rightfully cross-examine the witnesses presented by
the prosecution and introduce his own evidence in rebuttal. (Ocampo vs. Bernabe, 77 Phil.
55 [1946].) When, eventually, the court issues an order either granting or refusing bail, the
same should contain a summary of the evidence for the prosecution, followed by its
conclusion as to whether or not the evidence of guilt is strong. (People vs. Casingal, et al.,
G.R. No. 87173, March 29, 1995.) The court, though cannot rely on mere affidavits or
recitals of their contents, if timely objected to, for these represent only hearsay evidence,
and thus are insufficient to establish the quantum of evidence that the law requires.
(Baylon, etc. vs. Sison , A.M. No. 92-7-360-0, April 6, 1995.)

6. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; RULE. The definitive rule
now is that the special civil action for certiorari should not be instituted beyond a period of
three months, (Caramol vs. National Labor Relations Commission, et al., G.R. No. 102973,
August 24, 1993, 225 SCRA 582) the same to be reckoned by taking into account the
duration of time that had expired from the commission of the acts complained of up to the
institution of the proceeding to annul the same. (Fernandez vs. National Labor Relations
Commission, et al., G.R. No. 106090, February 28, 1994, 230 SCRA 460.)

DECISION

REGALADO, J p:

The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R.
SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the
motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this
appeal by certiorari through a petition which raises issues centering mainly on said
petitioner's right to be admitted to bail.

On January 28, 1990, petitioner was belatedly charged in an amended information as a co-
conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial
Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family
sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The
original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City,
1 had initially indicted for multiple murder eight accused suspects, namely, Felipe Galarion,
Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe,
as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet
Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was
apprehended, tried and eventually convicted. Galarion later escaped from prison. The others
have remained at large up to the present. 2

In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an
amended information dated October 6, 1988, he was charged as a co-accused therein. As
herein petitioner was his former employer and thus knew him well, Roxas engaged the
former's services as counsel in said case. Ironically, in the course of the preliminary
investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he
later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind
the massacre of the Bucag family. 3

Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per
his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor,
designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the
preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a
resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as
a co-conspirator in said criminal case in a second amended information dated October 6,
1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in
G.R. No. 96080, entitled "Atty. Miguel P. Paderanga vs. Hon Franklin M. Drilon, Hon.
Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an
en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second
amended information against him. 4

Under this backdrop, the trial of the case was all set to start with the issuance of an arrest
warrant for petitioner's apprehension but, before it could be served on him, petitioner,
through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court
which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the
motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and
the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court
proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but
only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office appeared
for the prosecution. 5

As petitioner was then confined at the Cagayan Capitol College General Hospital due to
"acute costochondritis," his counsel manifested that they were submitting custody over the
person of their client to the local chapter president of the Integrated Bar of the Philippines
and that, for purposes of said hearing on his bail application, he be considered as being in
the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in
accordance with the directive of the chief of their office, Regional State Prosecutor Jesus
Zozobrado, the prosecution was neither supporting nor opposing the application for bail and
that they were submitting the same to the sound discretion of the trial judge. 6

Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving
any further presentation of evidence. On that note and in a resolution dated November 5,
1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following
day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then,
managed to personally appear before the clerk of court of the trial court and posted bail in
the amount thus fixed. He was thereafter arraigned and, in the trial that ensued, he also
personally appeared and attended all the scheduled court hearings of the case. 7

The subsequent motion for reconsideration of said resolution filed twenty (20) days later on
November 26, 1992 by Prosecutor Gingoyon, who allegedly received his copy of the petition
for admission to bail on the day after the hearing, was denied by the trial court in its
omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months
later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a
special civil action for certiorari. Thus were the resolution and the order of the trial court
granting bail to petitioner annulled on November 24, 1993, in the decision now under
review, on the ground that they were tainted with grave abuse of discretion. 8

Respondent court observed in its decision that at the time of petitioner's application for bail,
he was not yet "in the custody of the law," apparently because he filed his motion for
admission to bail before he was actually arrested or had voluntarily surrendered. It further
noted that apart from the circumstance that petitioner was charged with a crime punishable
by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail
was recommended by the prosecution, for which reasons it held that the grant of bail was
doubly improvident. Lastly, the prosecution, according to respondent court, was not
afforded an opportunity to oppose petitioner's application for bail contrary to the
requirements of due process. Hence, this appeal.

Petitioner argues that in accordance with the ruling of this Court in Santiago vs. Vasquez
etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively
conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he
was in the custody of the law. In petitioner's words, the "invocation by the accused of the
court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction
over the person of the accused and bring him within the custody of the law."

Petitioner goes on to contend that the evidence on record negates the existence of such
strong evidence as would bar his provisional release on bail. Furthermore, the prosecution,
by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to
oppose the application for bail and whose representation in court in behalf of the
prosecution bound the latter, cannot legally assert any claim to a denial of procedural due
process. Finally, petitioner points out that the special civil action for certiorari was filed in
respondent court after an unjustifiable delay over an unreasonable length of time.

On the undisputed facts, the legal principles applicable and the equities involved in this
case, the Court finds for petitioner.

1. Section 1 of Rule 114, as amended, defines bail as the security given for the release
of a person in custody of the law, furnished by him or a bondsman, conditioned upon his
appearing before any court as required under the conditions specified in said Rule. Its main
purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction
and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's
provisional liberty, the same cannot be posted before custody over him has been acquired
by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this
Court has put it in a case, "it would be incongruous to grant bail to one who is free." 12

The rationale behind the rule is that it discourages and prevents resort to the former
pernicious practice whereby an accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his personal appearance therein and
compliance with the requirements therefor. 13 Thus, in Feliciano vs. Pasicolan, etc., et al.,
14 where the petitioner who had been charged with kidnapping with murder went into
hiding without surrendering himself, and shortly thereafter filed a motion asking the court to
fix the amount of the bail bond for his release pending trial, the Supreme Court categorically
pronounced that said petitioner was not eligible for admission to bail.

As a paramount requisite then, only those persons who have either been arrested, detained,
or otherwise deprived of their freedom will ever have occasion to seek the protective mantle
extended by the right to bail. The person seeking his provisional release under the auspices
of bail need not even wait for a formal complaint or information to be filed against him as it
is available to "all persons" 15 where the offense is bailable. This rule is, of course, subject
to the condition or limitation that the applicant is in the custody of the law. 16

On the other hand, a person is considered to be in the custody of the law (a) when he is
arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by
warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the
revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to
the jurisdiction of the court by surrendering to the proper authorities. 17 In this light, the
ruling vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained.

In said case, the petitioner, who was charged before the Sandiganbayan for violation of the
Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent
Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined
in a hospital recuperating from serious physical injuries which she sustained in a major
vehicular mishap. Consequently, she expressly sought leave "that she be considered as
having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the
required trial and other proceedings." On the basis of said ex-parte motion and the peculiar
circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a
cash bail bond for her provisional liberty without need of her personal appearance in view of
her physical incapacity and as a matter of humane consideration.

When the Sandiganbayan later issued a hold departure order against her, she questioned
the jurisdiction of that court over her person in a recourse before this Court, on the ground
that "she has neither been arrested nor has she voluntarily surrendered, aside from the fact
that she has not validly posted bail since she never personally appeared before said court."

In rejecting her arguments, the Court held that she was clearly estopped from assailing the
jurisdiction of the Sandiganbayan for by her own representations in the urgent ex parte
motion for bail, she had earlier recognized such jurisdiction. Furthermore, by actually
posting a cash bail bond which was accepted by the court, she had effectively submitted to
its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to
reiterate that the basic rule is that the same cannot be posted before custody of the
accused has been acquired by the judicial authorities either by his arrest or voluntary
surrender.

In the case of herein petitioner, it may be conceded that he had indeed filed his motion for
admission to bail before he was actually and physically placed under arrest. He may,
however, at that point and in the factual ambience thereof, be considered as being
constructively and legally under custody. Thus, in the likewise peculiar circumstances which
attended the filing of his bail application with the trial court, for purposes of the hearing
thereof he should be deemed to have voluntarily submitted his person to the custody of the
law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as
prayed for. In fact, an arrest is made either by an actual restraint of the arrestee or merely
by his submission to the custody of the person making the arrest. 19 The latter mode may
be exemplified by the so-called "house arrest" or, in the case of military offenders, by being
"confined to quarters" or restricted to the military camp area.

It should be stressed herein that petitioner, through his counsel, emphatically made it
known to the prosecution and to the trial court during the hearing for bail that he could not
personally appear as he was then confined at the nearby Cagayan Capitol College General
Hospital for acute costochondritis, and could not then obtain medical clearance to leave the
hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the
specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly
served upon him. Certainly, it would have taken but the slightest effort to place petitioner in
the physical custody of the authorities, since he was then incapacitated and under
medication in a hospital bed just over a kilometer away, by simply ordering his confinement
or placing him under guard.

The undeniable fact is that petitioner was by then in the constructive custody of the law.
Apparently, both the trial court and the prosecutors agreed on that point since they never
attempted to have him physically restrained. Through his lawyers, he expressly submitted
to physical and legal control over his person, firstly, by filing the application for bail with the
trial court; secondly, by furnishing true information of his actual whereabouts; and, more
importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when
it came to his knowledge that a warrant for his arrest had been issued, petitioner never
made any attempt or evinced any intent to evade the clutches of the law or concealed his
whereabouts from the authorities since the day he was charged in court, up to the
submission of his application for bail, and until the day of the hearing thereof.

At the hearing, his counsel offered proof of his actual confinement at the hospital on
account of an acute ailment, which facts were not at all contested as they were easily
verifiable. And, as a manifestation of his good faith and of his actual recognition of the
authority of the trial court, petitioner's counsel readily informed the court that they were
surrendering custody of petitioner to the president of the Integrated Bar of the Philippines,
Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not
for the purpose or in the manner of the former practice which the law proscribes for being
derogatory of the authority and jurisdiction of the courts, as what had happened in
Feliciano. There was here no intent or strategy employed to obtain bail in absentia and
thereby be able to avoid arrest should the application therefor be denied.

2. Section 13, Article III of the Constitution lays down the rule that before conviction,
all indictees shall be allowed bail, except only those charged with offenses punishable by
reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of
Rule 114, as amended, now provides that all persons in custody shall, before conviction by
a regional trial court of an offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right. The right to bail, which may be
waived considering its personal nature 21 and which, to repeat, arises from the time one is
placed in the custody of the law, springs from the presumption of innocence accorded every
accused upon whom should not be inflicted incarceration at the outset since after the trial
he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt.
22

Thus, the general rule is that prior to conviction by the regional trial court of a criminal
offense, an accused is entitled to be released on bail as a matter of right, the present
exceptions thereto being the instances where the accused is charged with a capital offense
or an offense punishable by reclusion perpetua or life imprisonment 23 and the evidence of
guilt is strong. Under said general rule, upon proper application for admission to bail, the
court having custody of the accused should, as a matter of course, grant the same after a
hearing conducted to specifically determine the conditions of the bail in accordance with
Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a
matter of judicial discretion on the part of the court under the exceptions to the rule, a
hearing, mandatory in nature and which should be summary or otherwise in the discretion
of the court, 24 is required with the participation of both the defense and a duly notified
representative of the prosecution, this time to ascertain whether or not the evidence of guilt
is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on
the prosecution to show that the evidence meets the required quantum. 26

Where such a hearing is set upon proper motion or petition, the prosecution must be given
an opportunity to present, within a reasonable time, all the evidence that it may want to
introduce before the court may resolve the application, since it is equally entitled as the
accused to due process. 27 If the prosecution is denied this opportunity, there would be a
denial of procedural due process, as a consequence of which the court's order in respect of
the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine
the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29
When, eventually, the court issues an order either granting or refusing bail, the same
should contain a summary of the evidence for the prosecution, followed by its conclusion as
to whether or not the evidence of guilt is strong. 30 The court, though cannot rely on mere
affidavits or recitals of their contents, if timely objected to, for these represent only hearsay
evidence, and thus are insufficient to establish the quantum of evidence that the law
requires. 31

In this appeal, the prosecution assails what it considers to be a violation of procedural due
process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional
State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor,
Henrick F. Gingoyon who is claimed to be the sole government prosecutor expressly
authorized to handle the case and who received his copy of the motion only on the day after
the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor
Abejo had no authority at all to waive the presentation of any further evidence in opposition
to the application for bail and to submit the matter to the sound discretion of the trial court.
In addition, they argue that the prosecution was not afforded "reasonable time" to oppose
that application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted
as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No.
86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which
was sent through radio message on July 10, 1992 and duly received by the Office of the
Regional State Prosecutor on the same date. This authorization, which was to be continuing
until and unless it was expressly withdrawn, was later confirmed and then withdrawn only
on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one
Rebecca Bucag-Tan questioned the authority of Regional State Prosecutor Jesus Zozobrado
and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government
prosecutors in said criminal case. It was in fact by virtue of this arrangement that the same
Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as
collaborating prosecutors in the previous hearing in said case. Hence, on the strength of
said authority and of its receipt of the notice of the hearing for bail, the Regional State
Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the
hearing held on November 5, 1992.

Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with
the case, he nonetheless was explicitly instructed about the position of the Regional State
Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of
the motion on the very day when it was sent, that is, October 28, 1992, duly instructed
Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor
opposing the application for bail and that they were submitting the matter to its sound
discretion. Obviously, what this meant was that the prosecution, at that particular posture
of the case, was waiving the presentation of any countervailing evidence. When the court a
quo sought to ascertain whether or not that was the real import of the submission by
Prosecutor Abejo, the latter readily answered in the affirmative.

The following exchanges bear this out:

"PROSECUTOR ERLINDO ABEJO:

I was informed to appear in this case just now, Your Honor.

COURT:

Where is your Chief of Office? Your office received a copy of the motion as early as
October 28. There is an element of urgency here.

PROSECUTOR ABEJO:

I am not aware of that, Your Honor. I was only informed just now. The one assigned
here is State Prosecutor Perseverando Arana, Jr. who unfortunately is in the hospital
attending to his sick son. I do not know about this but before I came I received an
instruction from our Chief to relay to this court the stand of the office regarding the motion
to admit bail. That office is neither supporting nor opposing it and we are submitting to the
sound discretion of the Honorable Court.

COURT:
 Place that manifestation on record. For the record, Fiscal Abejo, would you like to
formally enter your appearance in this matter?

PROSECUTOR ABEJO:

Yes, Your Honor. For the government, the Regional State Prosecutor's Office
represented by State Prosecutor Erlindo Abejo.

COURT:

By that manifestation do you want the Court to understand that in effect, at least,
the prosecution is dispensing with the presentation of evidence to show that the guilt of the
accused is strong, the denial . . .

PROSECUTOR ABEJO:

I am amenable to that manifestation, Your Honor.

COURT:

Final inquiry. Is the prosecution willing to submit the incident covered by this
particular motion for resolution by this court?

PROSECUTOR ABEJO:

Yes, Your Honor.

COURT:

Without presenting any further evidence?

PROSECUTOR ABEJO:

Yes, Your Honor." 34

It is further evident from the foregoing that the prosecution, on the instructions of Regional
State Prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this
should be so notwithstanding the statement that they were "neither supporting nor
opposing" the motion. What is of significance is the manifestation that the prosecution was
"submitting (the motion) to the sound discretion of the Honorable Court." By that, it could
not be any clearer. The prosecution was dispensing with the introduction of evidence en
contra and this it did at the proper forum and stage of the proceedings, that is, during the
mandatory hearing for bail and after the trial court had fully satisfied itself that such was
the position of the prosecution.

3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial
court has reasons to believe that the prosecutor's attitude of not opposing the application
for bail is not justified, as when he is evidently committing a gross error or a dereliction of
duty, the court, in the interest of justice, must inquire from the prosecutor concerned as to
the nature of his evidence to determine whether or not it is strong. And, in the very recent
administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon,
Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan
City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Dumagas, etc., 37 held that
where the prosecutor interposes no objection to the motion of the accused, the trial court
should nevertheless set the application for hearing and from there diligently ascertain from
the prosecution whether the latter is really not contesting the bail application.

No irregularity, in the context of procedural due process, could therefore be attributed to

the trial court here as regards its order granting bail to petitioner. A review of the transcript
of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus
order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As
summarized in its aforementioned order, the lower court exhausted all means to convince
itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover,
the omnibus order contained the requisite summary of the evidence of both the prosecution
and the defense, and only after sifting through them did the court conclude that petitioner
could be provisionally released on bail. Parenthetically, there is no showing that, since then
and up to the present, petitioner has ever committed any violation of the conditions of his
bail.

As to the contention that the prosecution was not given the opportunity to present its
evidence within a reasonable period of time, we hold otherwise. The records indicate that
the Regional State Prosecutor's Office duly received its copy of the application for bail on the
very same day that it was filed with the trial court on October 28, 1992. Counted from said
date up to the day of the hearing on November 5, 1992, the prosecution had more than one
(1) week to muster such evidence as it would have wanted to adduce in that hearing in
opposition to the motion. Certainly, under the circumstances, that period was more than
reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on
November 6, 1992 is beside the point for, as already established, the Office of the Regional
State Prosecutor was authorized to appear for the People.

4. What finally militates against the cause of the prosecution is the indubitably
unreasonable period of time that elapsed before it questioned before the respondent court
the resolution and the omnibus order of the trial court through a special civil action for
certiorari. The Solicitor General submits that the delay of more than six (6) months, or one
hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties
which characterized the prosecution of the criminal case against petitioner. But then, the
certiorari proceeding was initiated before the respondent court long after trial on the merits
of the case had ensued in the court below with the active participation of prosecution
lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now is that the
special civil action for certiorari should not be instituted beyond a period of three months,
38 the same to be reckoned by taking into account the duration of time that had expired
from the commission of the acts complained of up to the institution of the proceeding to
annul the same. 39

ACCORDINGLY, the judgment of respondent Court of Appeals in CA-G.R. SP No 32233,

promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and
the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City,
as well as said respondent court's resolution of April 26, 1994 denying the motion for
reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid
resolution and omnibus order of the Regional Trial Court granting bail to petitioner Miguel P.
Paderanga are hereby REINSTATED.

SO ORDERED.

[A.M. No. MTJ-07-1682. June 19, 2008.]

ESTER F. BARBERO, complainant, vs. JUDGE CESAR M. DUMLAO, Municipal Trial Court, San
Mateo, Isabela, respondent.

DECISION

PER CURIAM p:

This is a complaint for gross ignorance of the law filed by Ester F. Barbero (Barbero) against
Judge Cesar M. Dumlao (Judge Dumlao), Presiding Judge of the Municipal Trial Court, San
Mateo, Isabela. TaISDA

Barbero filed a criminal case 1 for estafa against a certain Herman A. Medina (Medina). The
case was raffled to Judge Anastacio D. Anghad (Judge Anghad), Presiding Judge of the
Regional Trial Court (RTC), Judicial Region II, Branch 36, Santiago City, Isabela. On 19
February 2003, Judge Anghad issued a warrant of arrest 2 commanding the proper officer to
arrest Medina.

Medina was arrested by virtue of the warrant of arrest. However, Judge Dumlao approved
Medina's bail and, on 9 May 2003, issued an order 3 commanding the Bureau of Jail
Management and Penology and the Philippine National Police to release Medina. Barbero
alleged that Judge Dumlao's approval of Medina's bail and his order to release Medina were
unlawful.

On 15 July 2003, the Office of the Court Administrator (OCA) received an affidavit-complaint
4 from Barbero charging Judge Dumlao with gross ignorance of the law. In its 1st
Indorsement 5 dated 7 August 2003, the OCA directed Judge Dumlao to comment on the
affidavit-complaint. Judge Dumlao ignored the 1st Indorsement. In its 1st Tracer 6 dated 11
November 2003, the OCA directed Judge Dumlao to comment on the affidavit-complaint.
Judge Dumlao ignored the 1st Tracer. In its 2nd Tracer 7 dated 10 March 2004, the OCA
directed Judge Dumlao to comment on the affidavit-complaint. Judge Dumlao ignored the
2nd Tracer. In a Resolution 8 dated 6 April 2005, the Court directed Judge Dumlao to
comment on the affidavit-complaint and to show cause why he should not be
administratively dealt with for ignoring the OCA's directives. Judge Dumlao ignored the 6
April 2005 Resolution. CAaDSI

In a Resolution 9 dated 17 August 2005, the Court reiterated its 6 April 2005 Resolution.
Judge Dumlao ignored the 17 August 2005 Resolution. In a Resolution dated 6 February
2006, the Court fined Judge Dumlao P500 for ignoring its directives and directed Judge
Dumlao to comply with the 17 August 2005 Resolution. Judge Dumlao ignored the 6
February 2006 Resolution. In Resolutions dated 18 September 2006 and 19 February 2007,
the Court considered Judge Dumlao to have waived his right to comment on the affidavit-
complaint and resolved to proceed with the administrative case based on the pleadings
already filed.

The Court finds Judge Dumlao liable for gross ignorance of the law and for violation of Court
directives. SAHaTc

Section 17 (a), Rule 114 of the Rules of Court provides:

SEC. 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the court
where the case is pending, or in the absence or unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial
judge in the province, city, or municipality. If the accused is arrested in a province, city, or
municipality other than where the case is pending, bail may also be filed with any regional
trial court of said place, or if no judge thereof is available, with any metropolitan trial judge,
municipal trial judge, or municipal circuit trial judge therein.

In Cruz v. Judge Yaneza, 10 the Court held that:

There are prerequisites to be complied with. First, the application for bail must be filed in
the court where the case is pending. In the absence or unavailability of the judge thereof,
the application for bail must be filed with another branch of the same court within the
province or city. Second, if the accused is arrested in a province, city or municipality other
than where the case is pending, bail may be filed with any regional trial court of the place.
(Emphasis ours) ASCTac

The criminal case Barbero filed against Medina was pending before the RTC of Santiago City.
Judge Anghad of the RTC issued the warrant of arrest, and Medina was arrested by virtue of
that warrant.

Section 3, Rule 114 of the Rules of Court provides that no person under detention by legal
process shall be released except when he is admitted to bail. Section 19 provides that the
accused must be discharged upon approval of the bail by the judge with whom it was filed
in accordance with Section 17. Section 17 provides that the bail may be filed with the court
where the case is pending, unless (1) the judge in that court is absent or unavailable, or (2)
the accused is arrested in a province, city, or municipality other than where the case is
pending. If the judge is absent or unavailable, the bail should be filed with another branch
of the same court. If the accused is arrested in a province, city, or municipality other than
where the case is pending, the bail should be filed with any RTC of the place.

In the present case, there was no showing that Judge Anghad was absent or unavailable or
that Medina was arrested outside Santiago City. Thus, Medina's bail should have been filed
with Judge Anghad. Even if Judge Anghad were absent or unavailable or even if Medina
were arrested in San Mateo, Judge Dumlao would still be liable because the bail should have
been filed with another branch of the RTC in Santiago City or with the RTC of San Mateo,
respectively. 11 TIESCA
Since the criminal case was pending before the RTC of Santiago City and there was no
showing that Judge Anghad of the RTC was absent or unavailable, Judge Dumlao lacked
authority to approve the bail and order Medina's release.

Barbero alleged that Judge Dumlao's acts of approving Medina's bail and ordering Medina's
release were not in accordance with law:

[N]apag-alaman ko . . . na [si Medina] ay basta na lang pinakawalan ni . . . Judge Cesar M.

Dumlao ng Municipal Trial Court ng San Mateo, Isabela . . .;

[A]ng ginawa ni Judge Cesar M. Dumlao ay hindi naaayon sa batas sapagkat wala siyang
kapangyarihang pakawalan . . . [si Medina];

[N]apag-alaman ko rin na ang pagrerelease na ginawa ni Judge Dumlao ay base sa [bail] na

ipinakita sa kanya;

[S]a akin pong pagkakaalam, lahat po ng [bail] sa criminal cases ay dapat aksyunan at
aprubahan ng hukom o judge na siyang may hawak ng asunto; aIEDAC

xxx xxx xxx

[K]ung maaari po sana, dahil sa kawalang respeto [ni Judge] Cesar M. Dumlao sa ating
batas . . ., ipinakikiusap [ko] na sana ay imbestigahan ang nasabing pagmamalabis at
kawalan ng respeto[.]

The Court directed Judge Dumlao several times to comment on Barbero's allegations. Judge
Dumlao opted to ignore all of the Court's directives. By his silence, Judge Dumlao admitted
the truth of the allegations. In Palon, Jr. v. Vallarta, 12 the Court held that silence is
admission of the truth of the charges:

Respondent judge failed to comment on the complaint or file any responsive pleading or
manifestation despite receipt of notice to do so. . . . The natural instinct of man impels him
to resist an unfounded claim or imputation and defend himself. It is against human nature
to just remain reticent and say nothing in the face of false accusations. Hence, silence . . . is
an admission of the truth of the charges. Respondent judge is deemed to have admitted the
charges against him. (Emphasis ours)

This is the second time Judge Dumlao unlawfully approved the bail and ordered the release
of Medina. The instant case has exactly the same set of facts as Lim v. Dumlao. 13 In that
case (1) complainant filed two criminal cases for carnapping and theft against Medina; (2)
the criminal cases were filed with the RTC, Judicial Region II, Branch 35, Santiago City,
Isabela; (3) Judge Fe Albano Madrid of the RTC issued a warrant of arrest against Medina;
(4) Medina was arrested by virtue of the warrant of arrest; (5) Judge Dumlao approved the
bail of Medina; and (6) Judge Dumlao ordered the release of Medina. SDHAcI

In Lim, 14 the Court held that:

It is not disputed that the criminal cases filed by complainant against Herman Medina were
pending before the Regional Trial Court of Santiago City, Isabela, Branch 35. In fact, the
warrant of arrest was issued by Judge Fe Albano Madrid, presiding judge of the said court.
The order of release therefore, on account of the posting of the bail, should have been
issued by that court, or in the absence or unavailability of Judge Madrid, by another branch
of an RTC in Santiago City. In this case, however, there is no proof that Judge Madrid was
absent or unavailable at the time of the posting of the bail bond. In fact, complainant Lim
avers that on the day [Judge Dumlao] ordered the release of Medina, Judge Madrid and all
the judges of the RTC of Santiago City, Isabela were at their respective posts.

It is elementary that a municipal trial court judge has no authority to grant bail to an
accused arrested outside of his territorial jurisdiction. The requirements of Section 17(a),
Rule 114 . . . must be complied with before a judge may grant bail. The Court recognizes
that not every judicial error bespeaks ignorance of the law and that, if committed in good
faith, does not warrant administrative sanction, but only in cases within the parameters of
tolerable misjudgment. Where . . . the law is straightforward and the facts so evident, not
to know it or to act as if one does not know it constitutes gross ignorance of the law.
HDIaST

[Judge Dumlao] undeniably erred in approving the bail and issuing the order of release. He
is expected to know that certain requirements ought to be complied with before he can
approve Medina's bail and issue an order for his release. The law involved is rudimentary
that it leaves little room for error. (Emphasis ours)

The acts of approving bail and ordering the release of accused whose cases are pending
before other courts constitute gross ignorance of the law. 15 Gross ignorance of the law is a
serious offense 16 punishable by (1) dismissal from the service, forfeiture of all or part of
the benefits, except accrued leave credits, and disqualification from reinstatement or
appointment to any public office, including government-owned or controlled corporations;
(2) suspension from office without salary and other benefits for more than three but not
exceeding six months; or (3) a fine of more than P20,000 but not exceeding P40,000. 17
IADaSE

Aside from Lim, the Court also found Judge Dumlao grossly ignorant of the law in Pascual v.
Judge Dumlao. 18 In that case, Judge Dumlao (1) hastily ordered the issuance of a
temporary restraining order (TRO) without notice and hearing; (2) ordered the issuance of
the TRO even though there was no showing of any grave or irreparable injury; (3) hastily
granted a motion to deposit harvest without notice and hearing; and (4) failed to order the
sheriff to render an accounting of the harvest.

Canon 6 of the New Code of Judicial Conduct for the Philippine Judiciary provides that
competence is a prerequisite to the due performance of judicial office. Judge Dumlao lacks
this prerequisite.

Judge Dumlao disrespected the Court by repeatedly refusing to comment on the affidavit-
complaint. In its 1st Indorsement dated 7 August 2003, 1st Tracer dated 11 November
2003, and 2nd Tracer dated 10 March 2004, the OCA directed Judge Dumlao to comment on
the affidavit-complaint. In its Resolutions dated 6 April 2005, 17 August 2005, and 6
February 2006, the Court fined Judge Dumlao P500, directed him to comment on the
affidavit-complaint, and directed him to show cause why he should not be administratively
dealt with for refusing to comment. Judge Dumlao unjustifiably ignored all six directives.
DcTSHa

Court resolutions directing judges to comment on administrative complaints are not mere
requests. Judges are duty-bound to obey them fully and promptly. 19 In refusing to
comment on the affidavit-complaint for almost five years and despite several directives from
the Court, Judge Dumlao blatantly demonstrated gross misconduct, outright disrespect,
indifference, and a recalcitrant streak in his character. 20

This is the third time Judge Dumlao disrespected the Court. In Office of the Court
Administrator v. Dumlao, 21 the Court found him liable for ignoring its directives. In that
case, the Court held that:

It appears that Judge Dumlao ignored and continued to ignore this Court's directive
requiring him to file his comment on complainant Sinaon, Jr.'s administrative complaint. He
had been afforded more than ample time within which to file the required pleading. . . .
[S]everal Resolutions had been issued by the OCA and this Court requiring Judge Dumlao to
comment on the complaint against him. The first Resolution was issued as early as 2 August
2002 and the last was issued almost three years later, or 5 July 2005, by which time, the
Court already deemed waived Judge Dumlao's right to file his comment and considered the
case submitted for decision based on the pleadings filed. Subsequently, Judge Dumlao again
failed to comply with the order of this Court to file his manifestation in the re-docketed
administrative complaint (concerning his non-filing of the comment) despite due notice.
EAIaHD

Judge Dumlao had been given more than ample time to abide with the orders of this Court,
yet he persistently failed to do so. Judge Dumlao neither offered any reason nor raised any
defense for his failure to comply with the mandates of this Court. Nothing was heard from
Judge Dumlao as to what had prevented him from complying with the Court's directives.
Such insolence should not go unpunished. (Emphasis ours)

In Lim, 22 the Court also found Judge Dumlao liable for ignoring its directives. In that case,
the Court held that, "We agree with the OCA that [Judge Dumlao] must be held
administratively liable for his unjustified failure to comment on an administrative complaint.
This constitutes gross misconduct and insubordination."

Violation of Supreme Court directives is a less serious offense 23 punishable by (1)

suspension from office without salary and other benefits for not less than one nor more than
three months, or (2) a fine of more than P10,000 but not exceeding P20,000. 24 AEDISC

Aside from Lim, Pascual, and Office of the Court Administrator, Judge Dumlao has another
administrative case decided against him. In Morales, Sr. v. Judge Dumlao, 25 the Court
found him liable for violating SC Administrative Circular No. 1-90. In that case, the Court
held that:

[Judge Dumlao's] claim that he did not know how he inadvertently signed the notarized
revocation of power of attorney in this case betrays a deficiency of that degree of
circumspection demanded of all those who don the judicial robe. It is, in fact, an open
admission of his negligence and lack of care in attending to the incidents brought before him
for adjudication. This kind of judicial carelessness runs contrary to Canon 3 of the Code of
Judicial Conduct, which states that:

A judge should perform official duties honestly, and with impartiality and diligence.
[(Emphasis ours)]

While we do not expect judges to have an encyclopedic recollection of applicable laws,

jurisprudence or administrative circulars we issue periodically in the discharge of their
responsibilities, they nevertheless have the bounden duty to keep abreast with the law and
the changes therein as well as the decisions of this Court. As a trial judge, [Judge Dumlao]
is the visible representation of law and justice. Under Canon 1.01 of the Code of Judicial
Conduct he is expected to be "the embodiment of competence, integrity and independence"
to maintain public confidence in the legal system. ITADaE

Inefficient judges are equally impermissible in the judiciary as the incompetent and
dishonest ones. Any of them tarnishes the image of the judiciary and brings it to public
contempt, dishonor or disrespect and must then be administratively dealt with and punished
accordingly.

Judge Dumlao has amply demonstrated his incorrigibility and unfitness to be a judge. He is
undeterred by the several penalties and stern warnings the Court has given him. The Court
will not hesitate to impose the ultimate penalty for it cannot tolerate any conduct that
diminishes the faith of the people in the judicial system. 26

WHEREFORE, the Court finds Judge Cesar M. Dumlao, Municipal Trial Court, San Mateo,
Isabela, GUILTY of GROSS IGNORANCE OF THE LAW and VIOLATION OF SUPREME COURT
DIRECTIVES. Accordingly, the Court DISMISSES him from the service, with forfeiture of all
benefits except accrued leave credits, and with prejudice to reinstatement or appointment
to any public office including government-owned or controlled corporations. ASTIED

SO ORDERED.

Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Corona, Azcuna, Tinga, Chico-Nazario,

Velasco, Jr., Reyes, Leonardo-de Castro and Brion, JJ., concur.

Austria-Martinez, Carpio-Morales and Nachura, JJ., are on official leave.

[G.R. No. 149723. October 27, 2006.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. VICTOR KEITH FITZGERALD, respondent.

DECISION

AUSTRIA-MARTINEZ, J p:

Assailed by way of Petition for Review on Certiorari under Rule 45 of the Rules of Court is
the August 31, 2001 Resolution 1 of the Court of Appeals (CA) in CA-G.R. CR No. 20431
which granted the Motion for Bail 2 of accused-appellant, herein respondent Victor Keith
Fitzgerald, (Fitzgerald). cEAIHa

The facts are of record.

An Information filed with the Regional Trial Court (RTC), Branch 75, Olongapo City and
docketed as Criminal Case No. 422-94, charged Fitzgerald, an Australian citizen, with
Violation of Art. III, Section 5, paragraph (a), subparagraph (5) of Republic Act (R.A.) No.
7610, 3 allegedly committed as follows:

That sometime in the month of September 1993, in the City of Olongapo, Zambales,
Philippines and within the jurisdiction of this Honorable Court, said accused VICTOR KEITH
FITZGERALD, actuated by lust, and by the use of laced drugs ("vitamins") willfully,
unlawfully and feloniously induced complainant "AAA," 4 a minor, 13 years of age, to
engage in prostitution by then and there showering said "AAA" with gifts, clothes and food
and thereafter having carnal knowledge of her in violation of the aforesaid law and to her
damage and prejudice. 5

After trial and hearing, the RTC rendered a Decision dated May 7, 1996, the decretal portion
of which reads:

WHEREFORE, finding the accused Victor Keith Fitzgerald GUILTY beyond reasonable doubt of
the offense of Violation of Section 5, Paragraph (a) sub-paragraph 5 of Republic Act No.
7610, he is hereby sentenced to suffer an indeterminate prison term of eight (8) years and
one (1) day of prision mayor as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal as maximum, with all the accessory penalties attached
therewith; and to indemnify the private complainant "AAA" the amounts of P30,000.00 as
moral damages and P20,000.00 as exemplary damages.

The Lingap Center of the Department of Social Welfare and Development (DSWD) in
Olongapo City shall hold in trust the said awards and dispose the same solely for the
rehabilitation and education of "AAA", to the exclusion of her mother and her other
relatives. SHDAEC

The accused under Article 29 of the Revised Penal Code shall be credited in full of his
preventive imprisonment if he has agreed voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners, otherwise to only 4/5 thereof.

Upon completion of the service of his sentence, the accused shall be deported immediately
and forever barred from entry to the Philippines.

In Criminal Case No. 419-94 for Rape, the accused is acquitted.

SO ORDERED. 6

Fitzgerald applied for bail which the RTC denied in an Order dated August 1, 1996, which
reads:

xxx xxx xxx

In fine, on the basis of the evidence adduced by the Prosecution during the hearing on the
bail petition, the Court is of the considered view that the circumstances of the accused
indicate probability of flight and that there is undue risk that the accused may commit a
similar offense, if released on bail pending appeal.

WHEREFORE, and viewed from the foregoing considerations, the Petition for Bail pending
appeal is DENIED.

SO ORDERED. 7

Fitzgerald appealed to the CA which, in a Decision 8 dated September 27, 1999, affirmed
the RTC Decision, thus:

IN VIEW WHEREOF, with the modification that the penalty imposed on the accused-
appellant is imprisonment of Fourteen (14) years, Eight (8) months and One (1) day of
Reclusion Temporal to Twenty (20) years and One (1) day of Reclusion Perpetua, the
decision of the court a quo is hereby AFFIRMED. EIDATc

SO ORDERED. 9

Fitzgerald filed a Motion for New Trial 10 and a Supplemental to Accused's Motion for New
Trial 11 on the ground that new and material evidence not previously available had
surfaced. The CA granted the Motion for New Trial in a Resolution dated August 25, 2000, to
wit:

WHEREFORE, the appellant's Motion for New Trial dated October 14, 1999 is GRANTED. The
original records of this case is hereby REMANDED to the Presiding Judge of the Regional
Trial Court of Olongapo City Branch 75 who is DIRECTED to receive the new evidence
material to appellant's defense within sixty days from receipt and thereafter to submit to
this Court the said evidence together with the transcript of stenographic notes together with
the records of the case within ten (10) days after the reception of evidence. The Motion to
Transfer appellant to the National Penitentiary is DENIED. 12 (Emphasis ours)

The People (petitioner) filed a Motion for Reconsideration 13 from the August 25, 2000 CA
Resolution while Fitzgerald filed a Motion to Fix Bail with Manifestation. 14 Both Motions
were denied by the CA in its November 13, 2000 Resolution. 15 In denying Fitzgerald's bail
application, the CA held:

[T]his Court hereby RESOLVES to:

xxx xxx xxx

2. DENY accused-appellant's Motion to Fix Bail with Manifestation, pursuant to the

provisions of Section 7, Rule 114 of the Rules of Court which provides:

"Sec. 7. Capital Offense or an offense punishable by reclusion perpetua or life

imprisonment, not bailable. No person charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment when evidence of guilt is strong shall
be admitted to bail regardless of the stage of the criminal prosecution." HAICET
In the case at bar, the maximum imposable penalty in accordance with Republic Act 7610
otherwise known as the Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act is reclusion perpetua. As it is, the evidence of guilt is strong, hence, We
hold that his motion for bail cannot be granted at this point.

With regard to his alleged physical condition, let it be stressed that accused-appellant is not
precluded from seeking medical attention if the need arises provided the necessary
representations with the proper authorities are made.

SO ORDERED. 16 (Emphasis ours)

The People filed with this Court a Petition for Review on Certiorari 17 docketed as G.R. No.
146008 questioning the August 25, 2000 and November 13, 2000 CA Resolutions. The
petition was dismissed in a Resolution 18 dated January 15, 2001, which became final and
executory on May 2, 2001. 19

Meanwhile, on December 3, 2000, Fitzgerald filed with the CA a Motion for Early
Transmittal of the Records and for the Re-Examination of the Penalty Imposed, and a
Motion for Bail. 20 The People filed its Comment 21 to both Motions.

On August 31, 2001, the CA issued the herein assailed Resolution 22 granting Fitzgerald's
bail application, thus:

xxx xxx xxx

Be that as it may, while We maintain that, as it is, the evidence of guilt is strong, We have
taken a second look at appellant's plea for temporary liberty considering primarily the fact
that appellant is already of old age 23 and is not in the best of health. Thus, it is this Court's
view that appellant be GRANTED temporary liberty premised not on the grounds stated in
his Motion for Bail but in the higher interest of substantial justice and considering the new
trial granted in this case. Accordingly, appellant is hereby DIRECTED to post a bail bond in
the amount of P100,000.00 for his temporary liberty provided he will appear in any court
and submit himself to the orders and processes thereof if and when required to do so. The
appellant is likewise refrained from leaving the country now or in the future until this case is
terminated. Accordingly, the Bureau of Immigration and Deportation is ORDERED to include
appellant in its hold departure list . . . .

xxx xxx xxx

SO ORDERED. 24 (Emphasis ours) cCSTHA

Thereafter, the RTC ordered Fitzgerald's temporary release on September 4, 2001 upon his
filing a cash bond in the amount of P100,000.00. 25

Hence, the People filed this Petition to have the August 31, 2001 CA Resolution annulled
and set aside. Petitioner argues that the CA erred in granting respondent Fitzgerald's Motion
for Bail despite the fact that the latter was charged with a crime punishable by reclusion
perpetua and the evidence of his guilt is strong. 26 It also questions the jurisdiction of the
CA to act on said Motion, considering that the case had been remanded to the RTC for new
trial. 27

In his Comment and Memorandum, respondent counters that the grant of new trial negated
the previous findings of the existence of strong evidence of his guilt; 28 and justifies his
provisional release on humanitarian grounds, citing as an extraordinary circumstance his
advanced age and deteriorating health. 29

The petition is meritorious.

We resolve first the preliminary question of whether the CA, after issuing its August 25,
2000 Resolution granting a new trial, still had jurisdiction to act on respondent's Motion to
Post Bail. Our ruling on this matter, however, shall be limited to the effect of the August 25,
2000 CA Resolution on the latter's jurisdiction; it shall have no bearing on the merits of said
Resolution as this has been decided with finality in G.R. No. 146008.

According to petitioner, considering that the August 25, 2000 CA Resolution, referring the
case to the RTC for new trial, had become final and executory on May 2, 2001 when this
Court denied its petition for review in G.R. No. 146008, then, when the CA issued the
August 31, 2001 Resolution granting respondent bail, it had been stripped of jurisdiction
over the case. 30

Petitioner is mistaken. TAIDHa

When this Court grants a new trial, it vacates both the judgment of the trial court convicting
the accused 31 and the judgment of the CA affirming it, 32 and remands the case to the
trial court for reception of newly-discovered evidence and promulgation of a new judgment,
33 at times with instruction to the trial court to promptly report the outcome. 34 The Court
itself does not conduct the new trial for it is no trier of facts. 35

However, when the CA grants a new trial, its disposition of the case may differ,
notwithstanding Sec. 1, 36 Rule 125 of the 2000 Rules on Criminal Procedure which
provides for uniformity in appellate criminal procedure between this Court and the CA.
Unlike this Court, the CA may decide questions of fact and mixed questions of fact and law.
37 Thus, when it grants a new trial under Sec. 14, Rule 124, it may either (a) directly
receive the purported newly-discovered evidence under Sec. 12, 38 or (b) refer the case to
the court of origin for reception of such evidence under Sec. 15. 39 In either case, it does
not relinquish to the trial court jurisdiction over the case; it retains sufficient authority to
resolve incidents in the case and decide its merits.

Now then, the CA, in its August 25, 2000 Resolution, ordered: first, the remand of the
original records of the case to the RTC; second, that the RTC receive the new evidence
material to appellant's defense within 60 days from receipt of the original records; and
third, that the RTC submit to it the said evidence together with the transcript of the case
within 10 days after reception of evidence. 40 From the foregoing disposition, it is evident
that the CA retained appellate jurisdiction over the case, even as it delegated to the RTC the
function of receiving the respondent's newly-discovered evidence. The CA therefore retained
its authority to act on respondent's bail application. Moreso that the original records of the
case had yet to be transmitted to the RTC when respondent filed his bail application and the
CA acted on it. aIcSED

With that procedural matter out of the way, we now focus on the substantive issue of
whether the CA erred when it allowed respondent to bail.

The right to bail emanates from the right to be presumed innocent. It is accorded to a
person in the custody of the law who may, by reason of the presumption of innocence he
enjoys, 41 be allowed provisional liberty upon filing of a security to guarantee his
appearance before any court, as required under specified conditions. 42

Implementing Sec. 13, 43 Article III of the 1987 Constitution, Sections 4 44 and 5, Rule
114 of the 2000 Rules of Criminal Procedure set forth substantive and procedural rules on
the disposition of bail applications. Sec. 4 provides that bail is a matter of right to an
accused person in custody for an offense not punishable by death, reclusion perpetua or life
imprisonment, 45 but a matter of discretion on the part of the court, concerning one facing
an accusation for an offense punishable by death, reclusion perpetua or life imprisonment
when the evidence of his guilt is strong. 46 As for an accused already convicted and
sentenced to imprisonment term exceeding six years, bail may be denied or revoked based
on prosecution evidence as to the existence of any of the circumstances under Sec. 5,
paragraphs (a) to (e), to wit:

Sec. 5.Bail, when discretionary Upon conviction by the Regional Trial Court of an offense
not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is
discretionary. The application for bail may be filed and acted upon by the trial court despite
the filing of a notice of appeal, provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable, the application for bail can only be
filed with and resolved by the appellate court. EATcHD

Should the court grant the application, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail subject to the
consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be cancelled upon a showing by the
prosecution, with notice to the accused, of the following or other similar circumstances: (a)
That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration; (b) That he has previously escaped from
legal confinement, evaded sentence, or violated the conditions of his bail without valid
justification; (c) That he committed the offense while under probation, parole, or conditional
pardon; (d) That the circumstances of his case indicate the probability of flight if released
on bail; or (e) That there is undue risk that he may commit another crime during the
pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of
the Regional Trial Court after notice to the adverse party in either case. (Emphasis supplied)
It will be recalled that herein respondent was charged with violation of Section 5, par. (a),
sub-paragraph (5), Article III of R.A. No. 7610, a crime which carries the maximum penalty
of reclusion perpetua. He was later convicted by the RTC for a lesser crime which carried a
sentence of imprisonment for an indeterminate term of eight (8) years and one (1) day of
prision mayor as minimum, to seventeen (17) years, four (4) months and one (1) day of
reclusion temporal as maximum.

These circumstances are not altered when the CA granted a new trial. 47 As already
discussed, the CA retained appellate jurisdiction over the case even as it ordered the
remand of the original records thereof to the RTC for reception of evidence. In retaining
appellate jurisdiction, it set aside only its own September 27, 1999 Decision but left
unaltered the May 7, 1996 RTC Decision. In fact, in its August 31, 2001 Resolution, the CA
emphasized:

As we have pointed out earlier, the propriety of appellant's conviction of the offense charged
as well as the penalty imposed thereto should be resolved during the appreciation of the
new trial after considering the new evidence which appellant insist would prove his
innocence. 48

The May 7, 1996 RTC Decision, therefore, remained operative. And under said Decision,
respondent stood sentenced to an imprisonment term exceeding six years. TSDHCc

Moreover, both the RTC and CA were unanimous in their findings of the existence of strong
evidence of the guilt of respondent. 49 These findings were not overturned when the CA
granted a new trial. Under Section 6 (b), Rule 121, the grant of a new trial allows for
reception of newly-discovered evidence but maintains evidence already presented or on
record. And if there has been a finding that evidence is strong and sufficient to bar bail, that
too subsists unless, upon another motion and hearing, the prosecution fails to prove that
the evidence against the accused has remained strong. 50 In the present case, no new
evidence had since been introduced, nor hearing conducted as would diminish the earlier
findings of the RTC and CA on the existence of strong evidence against respondent.

In sum, the circumstances of the case are such, that for respondent, bail was not a matter
of right but a mere privilege subject to the discretion of the CA to be exercised in
accordance with the stringent requirements of Sec. 5, Rule 114. And Sec. 5 directs the
denial or revocation of bail upon evidence of the existence of any of the circumstances
enumerated therein 51 such as those indicating probability of flight if released on bail or
undue risk that the accused may commit another crime during the pendency of the appeal.

As it is, however, the CA, in its August 31, 2001 Resolution, admitted respondent to bail
based, ". . . not on the grounds stated in his Motion for Bail . . .," but ". . . primarily [on]
the fact that [he] is already of old age and is not in the best of health . . .," and
notwithstanding its finding that ". . . as it is, the evidence of guilt is strong . . . ." 52 The
Resolution disregarded substantive and procedural requirements on bail.

It is bad enough that the CA granted bail on grounds other than those stated in the Motion
filed by respondent; it is worse that it granted bail on the mere claim of the latter's illness.
Bail is not a sick pass for an ailing or aged detainee or prisoner needing medical care
outside the prison facility. A mere claim of illness is not a ground for bail. 53 It may be that
the trend now is for courts to permit bail for prisoners who are seriously sick. 54 There may
also be an existing proposition for the "selective decarceration of older prisoners" based on
findings that recidivism rates decrease as age increases. 55 But, in this particular case, the
CA made no specific finding that respondent suffers from an ailment of such gravity that his
continued confinement during trial will permanently impair his health or put his life in
danger. It merely declared respondent not in the best of health even when the only
evidence on record as to the latter's state of health is an unverified medical certificate
stating that, as of August 30, 2000, respondent's condition required him to ". . . be confined
in a more sterile area . . . ." 56 That medical recommendation was even rebuffed by the CA
itself when, in its November 13, 2000 Resolution, it held that the physical condition of
respondent does not prevent him from seeking medical attention while confined in prison.
57

Moreover, there is a finding of record on the potential risk of respondent committing a

similar offense. In its August 1, 1996 Order, the RTC noted that the circumstances of
respondent indicate an undue risk that he would commit a similar offense, if released on bail
pending appeal. 58 The RTC explained its findings thus:

Dr. Aida Muncada, a highly competent Psychiatrist, testified that pedophilia is a state of
sexual disorder and sexual dysfunction. It is intense and recurrent. The possibility of the
commission of a similar offense for which the accused was convicted is great if the accused
will be exposed to "stress" and if an opportunity to commit it lurks. 59

The foregoing finding was not traversed or overturned by the CA in its questioned
Resolution. Such finding, therefore, remains controlling. It warranted the outright denial of
respondent's bail application. The CA, therefore, erred when it granted respondent's Motion
for Bail. IHEDAT

WHEREFORE, the petition is GRANTED and the August 31, 2001 CA Resolution ANNULLED
and SET ASIDE. The bail bond posted by respondent is CANCELLED. Let an ORDER OF
ARREST ISSUE against the person of the accused, Victor Keith Fitzgerald.

No costs.

SO ORDERED.

[G.R. No. 149276. September 27, 2002.]

JOVENCIO LIM and TERESITA LIM, petitioners, vs. THE PEOPLE OF THE PHILIPPINES, THE
REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 217, THE CITY PROSECUTOR OF
QUEZON CITY, AND WILSON CHAM, respondents.

Puno & Associates Law Office for petitioners.

The Solicitor General for respondents.

SYNOPSIS

Petitioners assail the constitutionality of PD 818, a decree which amended Article 315 of the
Revised Penal Code, by increasing the penalties for estafa, for being violative of the due
process clause, the right to bail and the provision against cruel, degrading or inhuman
punishment enshrined under the Constitution. cDHCAE

In dismissing the petition, the Supreme Court held that settled is the rule that a penalty of
fine or imprisonment, when authorized by a statute, is not cruel or degrading unless it is
flagrantly oppressive and wholly disproportionate to the nature of the offense as to shock
the moral sense of the community. Thus, while PD 818 increased the imposable penalties
for estafa committed under Article 315, par. 2 (d) of the Revised Penal Code, it did not
increase the amounts corresponding to the said new penalties. The increase in the penalty,
however, far from being cruel and degrading, was motivated by a laudable purpose,
namely, to avert the proliferation of estafa cases committed by means of bouncing checks
which undermines the country's commercial and economic growth.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT AGAINST CRUEL, DEGRADING AND INHUMAN

PUNISHMENT; INCREASING PENALTIES FOR ESTAFA COMMITTED BY MEANS OF BOUNCING
CHECKS, NOT A VIOLATION THEREOF; CASE AT BAR. Settled is the rule that a
punishment authorized by statute is not cruel, degrading or disproportionate to the nature
of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to
the nature of the offense as to shock the moral sense of the community. It takes more than
merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to
the Constitution. In this case, petitioners argue that while PD 818 increased the imposable
penalties for estafa committed under Article 315, par. 2 (d) of the Revised Penal Code, it did
not increase the amounts corresponding to the said new penalties. Thus, the original
amounts provided for in the Revised Penal Code have remained the same notwithstanding
that they have become negligible and insignificant compared to the present value of the
peso. This argument is without merit. . . Clearly, the increase in the penalty, far from being
cruel and degrading, was motivated by a laudable purpose, namely, to effectuate the
repression of an evil that undermines the country's commercial and economic growth, and
to serve as a necessary precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the new penalties only proves
that the amount is immaterial and inconsequential. What the law sought to avert was the
proliferation of estafa cases committed by means of bouncing checks. Taking into account
the salutary purpose for which said law was decreed, we conclude that PD 818 does not
violate Section 19 of Article III of the Constitution. aETADI

2. CONSTITUTIONAL LAW; STATUTES; PRESUMPTION OF CONSTITUTIONALITY;

BURDEN OF PROVING INVALIDITY OF A LAW RESTS ON THOSE WHO CHALLENGE IT; CASE
AT BAR. Moreover, when a law is questioned before the Court, the presumption is in
favor of its constitutionality. To justify its nullification, there must be a clear and
unmistakable breach of the Constitution, not a doubtful and argumentative one. The burden
of proving the invalidity of a law rests on those who challenge it. In this case, petitioners
failed to present clear and convincing proof to defeat the presumption of constitutionality of
PD 818.

DECISION

CORONA, J p:

The constitutionality of PD 818, a decree which amended Article 315 of the Revised Penal
Code by increasing the penalties for estafa committed by means of bouncing checks, is
being challenged in this petition for certiorari, for being violative of the due process clause,
the right to bail and the provision against cruel, degrading or inhuman punishment
enshrined under the Constitution. IADaSE

The antecedents of this case, as gathered from the parties' pleadings and documentary
proofs, follow.

In December 1991, petitioner spouses issued to private respondent two postdated checks,
namely, Metrobank Check No. 464728 dated January 15, 1992 in the amount of P365,750
and Metrobank Check No. 464743 dated January 22, 1992 in the amount of P429,000.
Check No. 464728 was dishonored upon presentment for having been drawn against
insufficient funds while Check No. 464743 was not presented for payment upon request of
petitioners who promised to replace the dishonored check.

When petitioners reneged on their promise to cover the amount of Check No. 464728, the
private respondent filed a complaint-affidavit before the Office of the City Prosecutor of
Quezon City charging petitioner spouses with the crime of estafa under Article 315, par. 2
(d) of the Revised Penal Code, as amended by PD 818.

On February 16, 2001, the City Prosecutor issued a resolution finding probable cause
against petitioners and recommending the filing of an information for estafa with no bail
recommended. On the same day, an information for the crime of estafa was filed with
Branch 217 of the Regional Trial Court of Quezon City against petitioners. The case was
docketed as Criminal Case No. Q-01-101574. Thereafter, the trial court issued a warrant for
the arrest of herein petitioners, thus:

It appearing on the face of the information and from supporting affidavit of the complaining
witness and its annexes that probable cause exists, that the crime charged was committed
and accused is probably guilty thereof, let a warrant for the arrest of the accused be issued.

No Bail Recommended.

SO ORDERED. 1

On July 18, 2001, petitioners filed an "Urgent Motion to Quash Information and Warrant of
Arrest" which was denied by the trial court. Likewise, petitioners' motion for bail filed on
July 24, 2001 was denied by the trial court on the same day. Petitioner Jovencio Lim was
arrested by virtue of the warrant of arrest issued by the trial court and was detained at the
Quezon City Jail. However, petitioner Teresita Lim remained at large.
On August 22, 2001, petitioners filed the instant petition for certiorari imputing grave abuse
of discretion on the part of the lower court and the Office of the City Prosecutor of Quezon
City, arguing that PD 818 violates the constitutional provisions on due process, bail and
imposition of cruel, degrading or inhuman punishment.

In a resolution dated February 26, 2002, this Court granted the petition of Jovencio Lim to
post bail pursuant to Department of Justice Circular No. 74 dated November 6, 2001 which
amended the 2000 Bail Bond Guide involving estafa under Article 315, par. 2 (d), and
qualified theft. Said Circular specifically provides as follows:

xxx xxx xxx

3) Where the amount of fraud is P32,000.00 or over in which the imposable penalty is
reclusion temporal to reclusion perpetua, bail shall be based on reclusion temporal
maximum, pursuant to Par. 2 (a) of the 2000 Bail Bond Guide, multiplied by P2,000.00, plus
an additional of P2,000.00 for every P10,000.00 in excess of P22,000.00; Provided,
however, that the total amount of bail shall not exceed P60,000.00.

In view of the aforementioned resolution, the matter concerning bail shall no longer be
discussed. Thus, this decision will focus on whether or not PD 818 violates Sections 1 and
19 of Article III of the Constitution, which respectively provide:

Section 1. No person shall be deprived of life, liberty or property without due process of law,
nor shall any person be denied the equal protection of the laws.

xxx xxx xxx

Section 19 (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. . . . .

We shall deal first with the issue of whether PD 818 was enacted in contravention of Section
19 of Article III of the Constitution. In this regard, the impugned provision of PD 818 reads
as follows:

SECTION 1. Any person who shall defraud another by means of false pretenses or
fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as
amended by Republic Act No. 4885, shall punished by:

1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but
does not exceed 22,000 pesos, and if such amount exceeds the later sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year for
each additional 10,000 pesos but the total penalty which may be imposed shall in no case
exceed thirty years. In such cases, and in connection with the accessory penalties which
may be imposed under the Revised Penal Code, the penalty shall be termed reclusion
perpetua;

2nd. The penalty of prision mayor in its maximum period, if the amount of the fraud is over
6,000 pesos but does not exceed 12,000 pesos.
3rd. The penalty of prision mayor in its medium period, if such amount is over 200 pesos
but does not exceed 6,000 pesos; and

4th. By prision mayor in its minimum period, if such amount does not exceed 200 pesos.

Petitioners contend that, inasmuch as the amount of the subject check is P365,750, they
can be penalized with reclusion perpetua or 30 years of imprisonment. This penalty,
according to petitioners, is too severe and disproportionate to the crime they committed and
infringes on the express mandate of Article III, Section 19 of the Constitution which
prohibits the infliction of cruel, degrading and inhuman punishment.

Settled is the rule that a punishment authorized by statute is not cruel, degrading or
disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive
and wholly disproportionate to the nature of the offense as to shock the moral sense of the
community. It takes more than merely being harsh, excessive, out of proportion or severe
for a penalty to be obnoxious to the Constitution. 2 Based on this principle, the Court has
consistently overruled contentions of the defense that the penalty of fine or imprisonment
authorized by the statute involved is cruel and degrading.

In People vs. Tongko, 3 this Court held that the prohibition against cruel and unusual
punishment is generally aimed at the form or character of the punishment rather than its
severity in respect of its duration or amount, and applies to punishments which never
existed in America or which public sentiment regards as cruel or obsolete. This refers, for
instance, to those inflicted at the whipping post or in the pillory, to burning at the stake,
breaking on the wheel, disemboweling and the like. The fact that the penalty is severe
provides insufficient basis to declare a law unconstitutional and does not, by that
circumstance alone, make it cruel and inhuman.

Petitioners also argue that while PD 818 increased the imposable penalties for estafa
committed under Article 315, par. 2 (d) of the Revised Penal Code, it did not increase the
amounts corresponding to the said new penalties. Thus, the original amounts provided for in
the Revised Penal Code have remained the same notwithstanding that they have become
negligible and insignificant compared to the present value of the peso.

This argument is without merit. The primary purpose of PD 818 is emphatically and
categorically stated in the following:

WHEREAS, reports received of late indicate an upsurge of estafa (swindling) cases

committed by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode the people's confidence
in the use of negotiable instruments as a medium of commercial transaction and
consequently result in the retardation of trade and commerce and the undermining of the
banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this kind of estafa cases by
increasing the existing penalties provided therefor.
Clearly, the increase in the penalty, far from being cruel and degrading, was motivated by a
laudable purpose, namely, to effectuate the repression of an evil that undermines the
country's commercial and economic growth, and to serve as a necessary precaution to deter
people from issuing bouncing checks. The fact that PD 818 did not increase the amounts
corresponding to the new penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation of estafa cases
committed by means of bouncing checks. Taking into account the salutary purpose for
which said law was decreed, we conclude that PD 818 does not violate Section 19 of Article
III of the Constitution.

Moreover, when a law is questioned before the Court, the presumption is in favor of its
constitutionality. To justify its nullification, there must be a clear and unmistakable breach
of the Constitution, not a doubtful and argumentative one. 4 The burden of proving the
invalidity of a law rests on those who challenge it. In this case, petitioners failed to present
clear and convincing proof to defeat the presumption of constitutionality of PD 818.

With respect to the issue of whether PD 818 infringes on Section 1 of Article III of the
Constitution, petitioners claim that PD 818 is violative of the due process clause of the
Constitution as it was not published in the Official Gazette. This claim is incorrect and must
be rejected. Publication, being an indispensable part of due process, is imperative to the
validity of laws, presidential decrees and executive orders. 5 PD 818 was published in the
Official Gazette on December 1, 1975. 6

With the foregoing considerations in mind, this Court upholds the constitutionality of PD
818. EcDATH

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.