THIRD DIVISION

G.R. No. 192330 November 14, 2012

ARNOLD JAMES M. YSIDORO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

ABAD, J.:

This case is about a municipal mayor charged with illegal diversion of food intended for those
suffering from malnutrition to the beneficiaries of reconsideration projects affecting the homes of
victims of calamities.

The Facts and the Case

The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code.1

The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte,
Leyte, operated a Core Shelter Assistance Program (CSAP) that provided construction materials to
indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.

On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was
70% done, the beneficiaries stopped reporting for work for the reason that they had to find food for
their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction materials particularly the cement. Thus, she sought
the help of Cristina Polinio (Polinio), an officer of the MSWDO in charge of the municipality’s
Supplemental Feeding Program (SFP) that rationed food to malnourished children. Polinio told
Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had
already distributed food to the mother volunteers, what remained could be given to the CSAP
beneficiaries.

Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek
his approval. After explaining the situation to him, Ysidoro approved the release and signed the
withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor
Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the
matter. On being consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s
Office, signed the withdrawal slip based on her view that it was an emergency situation justifying the
release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards,
Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.

On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the
present complaint against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified
that the subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished children.
She also pointed out that the Supplemental Feeding Implementation Guidelines for Local
Government Units governed the distribution of SFP goods.3 Thus, Ysidoro committed technical
malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.

In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the
poor of the municipality was valid since they came from the savings of the SFP and the Calamity
Fund. Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries were
also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor
conducted a comprehensive audit of their municipality in 2001 and found nothing irregular in its
transactions.

On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage or embarrassment to public service, it only
fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied
public property to a pubic purpose other than that for which it has been appropriated by law or
ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On
June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.

The Questions Presented

In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical

malversation. He particularly raises the following questions:

1. Whether or not he approved the diversion of the subject goods to a public purpose
different from their originally intended purpose;

2. Whether or not the goods he approved for diversion were in the nature of savings that
could be used to augment the other authorized expenditures of the municipality;

3. Whether or not his failure to present the municipal auditor can be taken against him; and

4. Whether or not good faith is a valid defense for technical malversation.

The Court’s Rulings

One. The crime of technical malversation as penalized under Article 220 of the Revised Penal
Code4 has three elements: a) that the offender is an accountable public officer; b) that he applies
public funds or property under his administration to some public use; and c) that the public use for
which such funds or property were applied is different from the purpose for which they were
originally appropriated by law or ordinance.5 Ysidoro claims that he could not be held liable for the
offense under its third element because the four sacks of rice and two boxes of sardines he gave the
CSAP beneficiaries were not appropriated by law or ordinance for a specific purpose.

But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted
Resolution 00-133 appropriating the annual general fund for 2001.6 This appropriation was based on
the executive budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services8 which covers the CSAP housing
projects.9 The creation of the two items shows the Sanggunian’s intention to appropriate separate
funds for SFP and the CSAP in the annual budget.

Since the municipality bought the subject goods using SFP funds, then those goods should be used
for SFP’s needs, observing the rules prescribed for identifying the qualified beneficiaries of its
feeding programs. The target clientele of the SFP according to its manual10 are: 1) the moderately
and severely underweight pre-school children aged 36 months to 72 months; and 2) the families of
six members whose total monthly income is P3,675.00 and below.11 This rule provides assurance that
the SFP would cater only to the malnourished among its people who are in urgent need of the
government’s limited resources.

Ysidoro disregarded the guidelines when he approved the distribution of the goods to those
providing free labor for the rebuilding of their own homes. This is technical malversation. If Ysidoro
could not legally distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the
latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that,
therefore, the same could already be diverted to the CSAP beneficiaries. He relies on Abdulla v.
People12 which states that funds classified as savings are not considered appropriated by law or
ordinance and can be used for other public purposes. The Court cannot accept Ysidoro’s argument.

The subject goods could not be regarded as savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could say in mid-June 2001 that SFP had already
finished its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not
mean that the remaining food items in its storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite
premature.

In any case, the Local Government Code provides that an ordinance has to be enacted to validly
apply funds, already appropriated for a determined public purpose, to some other purpose. Thus:

SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the
specific purpose for which they have been appropriated. No ordinance shall be passed authorizing
any transfer of appropriations from one item to another. However, the local chief executive or the
presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any
item in the approved annual budget for their respective offices from savings in other items within the
same expense class of their respective appropriations.

The power of the purse is vested in the local legislative body. By requiring an ordinance, the law
gives the Sanggunian the power to determine whether savings have accrued and to authorize the
augmentation of other items on the budget with those savings.

Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence
and the presumption of regularity in the performance of official functions.

Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified,
his testimony would have been adverse to the mayor. The municipal auditor’s view regarding the
transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the
accounting department if the goods could be distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the crime. 1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a particular public purpose to another public
purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but
becomes a criminal offense because positive law forbids its commission based on considerations of
public policy, order, and convenience.13 It is the commission of an act as defined by the law, and not
the character or effect thereof, that determines whether or not the provision has been violated.
Hence, malice or criminal intent is completely irrelevant.14

Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes
the crime of technical malversation. The law and this Court, however, recognize that his offense is
not grave, warranting a mere fine.

WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in
Criminal Case 28228 dated February 8, 2010.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

DIOSDADO M. PERALTA JOSE PORTUGAL PEREZ*

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes

* Designated Acting Member, per Special Order 1299 dated August 28, 2012.

1
Records, p. 1.

2
Id. at 250.

3
Id. at 260-329.

4
Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any
public fund or property under his administration to any public use other than for which such
fund or property were appropriated by law or ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any damages or embarrassment shall have
resulted to the public service. In either case, the offender shall also suffer the penalty of
temporary special disqualification.

If no damage or embarrassment to the public service has resulted, the penalty shall
be a fine from 5 to 50 per cent of the sum misapplied.

5
Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).

6
Records, pp. 258-259.

7
SEC. 318. Preparation of the Budget by the Local Chief Executive. – Upon receipt of the
statements of income and expenditures from the treasurer, the budget proposals of the
heads of departments and offices, and the estimates of income and budgetary ceilings from
the local finance committee, the local chief executive shall prepare the executive budget for
the ensuing fiscal year in accordance with the provisions of this Title. The local chief
executive shall submit the said executive budget to the sanggunian concerned not later than
the sixteenth (16th) of October of the current fiscal year. Failure to submit such budget on
the date prescribed herein shall subject the local chief executive to such criminal and
administrative penalties as provided for under this Code and other applicable laws.
(Emphasis supplied)

SEC. 319. Legislative Authorization of the Budget. – On or before the end of the
current fiscal year, the sanggunian concerned shall enact, through an ordinance, the
annual budget of the local government unit for the ensuing fiscal year on the basis of
the estimates of income and expenditures submitted by the local chief executive.

8
Records, p. 254.

9
TSN, May 23, 2006, p. 15 (rollo, pp. 127-128) and TSN, August 2, 2007, pp. 15-16 (rollo, p.
130).
 Guidelines on the Management of CRS Supported Supplemental Feeding Program
10

Implemented by the Local Government Units; Sandiganbayan rollo, Vol. I, pp. 260-329.

11
Id. at 263.

12
495 Phil. 70 (2005).

FLORENZ REGALADO, CRIMINAL LAW CONSPECTUS (2003 rev. ed), citing People v.
13

Pavlic, 227 Mich., 563, N.W. 371, 35 ALR.

14
Luciano v. Estrella, 145 Phil. 454, 464-465 (1970).

SECOND DIVISION

[G.R. No. 141066. February 17, 2005]

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May 17,
1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the Decision dated
August 24, 1996, of the Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case
Nos. 7068, 7069 and 7070 convicting her of violation of B.P. Blg. 22, otherwise known
as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with
the RTC, docketed as Criminal Case Nos. 7068 - 7070. The Information in Criminal
Case No. 7068 alleges as follows:

That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating, and mutually helping with one another, knowing fully well that they
did not have sufficient funds deposited with the United Coconut Planters Bank
(UCPB), Tagbilaran Branch, did then and there willfully, unlawfully, and feloniously,
draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of
NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS
(P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter
that they did not have sufficient funds deposited with the bank to cover up the amount
of the check, did then and there willfully, unlawfully and feloniously pass on, indorse,
give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank
for encashment, the same was dishonored for the reason that the account of the
accused with the United Coconut Planters Bank, Tagbilaran Branch, had already been
closed, to the damage and prejudice of the said Alfredo Oculam in the aforestated
amount.

Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]

The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070
are similarly worded, except for the allegations concerning the number, date and
amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the
amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the
amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26, 1991,
the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam. He
testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga became his regular
customers in his pawnshop business in Tagbilaran City, Bohol;[7] sometime in May
1990, the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United
Coconut Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, 1990
issued by Adronico;[8] sometime in the last week of April 1990 and during the first week
of May 1990, the Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990 issued by
Adronico;[9] between May and June 1990, the Ladonga spouses obtained a third loan in
the amount of P8,496.55, guaranteed by UCPB Check No. 106136, post dated to July
22, 1990 issued by Adronico;[10] the three checks bounced upon presentment for the
reason CLOSED ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against them. [12]
While admitting that the checks issued by Adronico bounced because there was no
sufficient deposit or the account was closed, the Ladonga spouses claimed that the
checks were issued only to guarantee the obligation, with an agreement that Oculam
should not encash the checks when they mature; [13] and, that petitioner is not a
signatory of the checks and had no participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the dispositive portion
of which reads:
Premises considered, this Court hereby renders judgment finding accused Adronico
Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the
aforesaid three (3) criminal cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:

1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of
them, and a fine in the amount of P9,075.55, equivalent to the amount of UCPB
Check No. 284743;

2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1)
year and a fine of P12, 730.00, equivalent to the amount of UCPB Check No. 284744;
and,

3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of
them and a fine of P8,496.55 equivalent to the amount of UCPB Check No. 106136;

4. That both accused are further ordered to jointly and solidarily pay and reimburse
the complainant, Mr. Alfredo Oculam, the sum of P15,000.00 representing actual
expenses incurred in prosecuting the instant cases; P10,000.00 as attorneys fee; and
the amount of P30,302.10 which is the total value of the three (3) subject checks
which bounced; but without subsidiary imprisonment in case of insolvency.

With Costs against the accused.

SO ORDERED.[15]

Adronico applied for probation which was granted.[16] On the other hand, petitioner
brought the case to the Court of Appeals, arguing that the RTC erred in finding her
criminally liable for conspiring with her husband as the principle of conspiracy is
inapplicable to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of
the checks and had no participation in the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. [18] It
held that the provisions of the penal code were made applicable to special penal laws in
the decisions of this Court in People vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs.
Bruhez.[21] It noted that Article 10 of the Revised Penal Code itself provides that its
provisions shall be supplementary to special laws unless the latter provide the contrary.
The Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the applicability
in a suppletory character of the provisions of the Revised Penal Code (RPC), the
principle of conspiracy may be applied to cases involving violations of B.P. Blg. 22.
Lastly, it ruled that the fact that petitioner did not make and issue or sign the checks did
not exculpate her from criminal liability as it is not indispensable that a co-conspirator
takes a direct part in every act and knows the part which everyone performed. The
Court of Appeals underscored that in conspiracy the act of one conspirator could be
held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied
the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:

1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR

ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED
HUSBAND UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE FOR
VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.

2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:

A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS

OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF
ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:

Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in
the future may be punished under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF

APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF PETITIONER AS
CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF THE
REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS
APPLICABLE.[23]

Petitioner staunchly insists that she cannot be held criminally liable for violation
of B.P. Blg.22 because she had no participation in the drawing and issuance of the
three checks subject of the three criminal cases, a fact proven by the checks
themselves. She contends that the Court of Appeals gravely erred in applying the
principle of conspiracy, as defined under the RPC, to violations of B.P. Blg. 22. She
posits that the application of the principle of conspiracy would enlarge the scope of the
statute and include situations not provided for or intended by the lawmakers, such as
penalizing a person, like petitioner, who had no participation in the drawing or issuance
of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised Penal Code,
especially with the addition of the second sentence in Article 10, are applicable to
special laws. It submits that B.P. Blg. 22 does not provide any prohibition regarding the
applicability in a suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in
the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.

The article is composed of two clauses. The first provides that offenses which in the
future are made punishable under special laws are not subject to the provisions of the
RPC, while the second makes the RPC supplementary to such laws. While it seems
that the two clauses are contradictory, a sensible interpretation will show that they can
perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are
controlling with regard to offenses therein specifically punished. Said clause only
restates the elemental rule of statutory construction that special legal provisions prevail
over general ones.[24] Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether. The second
clause contains the soul of the article. The main idea and purpose of the article is
embodied in the provision that the "code shall be supplementary" to special laws, unless
the latter should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases involved the
suppletory application of principles under the then Penal Code to special laws. People
vs. Parel is concerned with the application of Article 22[28] of the Code to violations of
Act No. 3030, the Election Law, with reference to the retroactive effect of penal laws if
they favor the accused. U.S. vs. Ponteinvolved the application of Article 17[29] of the
same Penal Code, with reference to the participation of principals in the commission of
the crime of misappropriation of public funds as defined and penalized by Act No.
1740. U.S. vs. Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P. Blg. 22, the
general provisions of the RPC which, by their nature, are necessarily applicable, may be
applied suppletorily. Indeed, in the recent case of Yu vs. People,[31] the Court applied
suppletorily the provisions on subsidiary imprisonment under Article 39 [32] of the RPC
to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to
the application of the provision on principals under Article 17 in U.S. vs. Ponte. For once
conspiracy or action in concert to achieve a criminal design is shown, the act of one is
the act of all the conspirators, and the precise extent or modality of participation of each
of them becomes secondary, since all the conspirators are principals.[33]
 All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it.
To be held guilty as a co-principal by reason of conspiracy, the accused must be shown
to have performed an overt act in pursuance or furtherance of the complicity. [34] The
overt act or acts of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his co-conspirators
by moving them to execute or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed any
overt act in furtherance of the alleged conspiracy. As testified to by the lone prosecution
witness, complainant Alfredo Oculam, petitioner was merely present when her husband,
Adronico, signed the check subject of Criminal Case No. 7068. [36] With respect to
Criminal Case Nos. 7069-7070, Oculam also did not describe the details of petitioners
participation. He did not specify the nature of petitioners involvement in the commission
of the crime, either by a direct act of participation, a direct inducement of her co-
conspirator, or cooperating in the commission of the offense by another act without
which it would not have been accomplished. Apparently, the only semblance of overt act
that may be attributed to petitioner is that she was present when the first check was
issued. However, this inference cannot be stretched to mean concurrence with the
criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence.[37] Conspiracy transcends mere companionship and mere presence at the
scene of the crime does not in itself amount to conspiracy.[38] Even knowledge,
acquiescence in or agreement to cooperate, is not enough to constitute one as a party
to a conspiracy, absent any active participation in the commission of the crime with a
view to the furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]

To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at

every turn. It is a legal concept that imputes culpability under specific circumstances;
as such, it must be established as clearly as any element of the crime. Evidence to
prove it must be positive and convincing, considering that it is a convenient and
simplistic device by which the accused may be ensnared and kept within the penal
fold.

Criminal liability cannot be based on a general allegation of conspiracy, and a

judgment of conviction must always be founded on the strength of the prosecutions
evidence. The Court ruled thus in People v. Legaspi, from which we quote:

At most, the prosecution, realizing the weakness of its evidence against accused-
appellant Franco, merely relied and pegged the latters criminal liability on its
sweeping theory of conspiracy, which to us, was not attendant in the commission of
the crime.

The rule is firmly entrenched that a judgment of conviction must be predicated on the
strength of the evidence for the prosecution and not on the weakness of the evidence
for the defense. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied
that on the defense could be laid the responsibility for the offense charged; that not
only did he perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.

Verily, it is the role of the prosecution to prove the guilt of the appellant beyond
reasonable doubt in order to overcome the constitutional presumption of innocence.

In sum, conviction must rest on hard evidence showing that the accused is guilty
beyond reasonable doubt of the crime charged. In criminal cases, moral certainty --
not mere possibility -- determines the guilt or the innocence of the accused. Even
when the evidence for the defense is weak, the accused must be acquitted when the
prosecution has not proven guilt with the requisite quantum of proof required in all
criminal cases. (Citations omitted)[41]

All told, the prosecution failed to establish the guilt of the petitioner with moral
certainty. Its evidence falls short of the quantum of proof required for conviction.
Accordingly, the constitutional presumption of the petitioners innocence must be upheld
and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May
17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443 affirming the Decision,
dated August 24, 1996, of the Regional Trial Court (Branch 3), Bohol, in Criminal Case
Nos. 7068, 7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the
charges against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

[1] Penned by Justice Buenaventura J. Guerrero (now retired) and concurred in by Justices Portia Alino-
Hormachuelos and Eloy R. Bello (now retired).
[2] Original Records, pp. 1-2.
[3] Id., p. 3.
[4] Id., p. 5.
[5] Id., pp. 29-31.
[6] Also known as Ronie.
[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[8] Id., pp. 16-21.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; TSN of December 4, 1991, Testimony
of Alfredo Oculam, pp. 1 and 3; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1;
Original Records, p. 128.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and 4; TSN of January 28, 1992,
Testimony of Alfredo Oculam, p. 2; Original Records, p. 125.
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-8, 11-12 and 15; TSN of December
20, 1993, Testimony of Adronico Ladonga, p. 18.
[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; TSN of December 20, 1993,
Testimony of Adronico Ladonga, pp. 24-26.
[15] Original Records, p. 124.
[16] Id., p. 126.
[17] Court of Appeals (CA) Rollo, p. 28.
[18] Rollo, p. 133.
[19] No. 18260, January 27, 1923, 44 Phil. 437.
[20] No. 5952, October 24, 1911, 20 Phil. 379.
[21] No. 9268, November 4, 1914, 28 Phil. 305.
[22] Rollo, p. 39.
[23] Rollo, pp. 69-70.
[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA
449, 483.
[25] Note No. 19, supra.
[26] Note No. 20, supra.
[27] Note No. 21, supra.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5
of Article 62 of this Code, although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.
[29] ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
 3. Those who cooperate in the commission of the offense by another act without which it would not
have been accomplished.
[30] ART. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty
imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the
crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the
Government, unless they be the property of a third person not liable for the offense, but those
articles which are not subject of lawful commerce shall be destroyed.
[31] G.R. No. 134172, September 20, 2004.
[32] ART. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at
the rate of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under
confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it
continue for more than one year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed
six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not
exceed fifteen days, if for a light felony.
3. When the principal penalty imposed is higher than prision correccional no subsidiary
imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivation as those of which the principal
penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency
shall not relieve him from the fine in case his financial circumstances should improve.
[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418 SCRA 146, 176; People vs. Julianda,
Jr., G.R. No. 128886, November 23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No.
142430, September 13, 2001, 365 SCRA 252, 266.
[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA 19, 33; People vs. Bisda, G.R. No.
140895, July 17, 2003, 406 SCRA 454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991,
June 18, 2003, 404 SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 437; People vs. Ponce,
G.R. No. 126254, September 29, 2000, 341 SCRA 352, 359-360.
[36] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.
[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA 540, 553; People vs. Melencion,
G.R. No. 121902, March 26, 2001, 355 SCRA 113, 123.
[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA 774; People vs. Compo, G.R. No.
112990, May 28, 2001, 358 SCRA 266, 272.
[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411 SCRA 587, 595.
[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393 SCRA 292.
[41] Id., pp. 304-305.
 SECOND DIVISION

REPUBLIC OF THE PHILIPPINES, G.R. No. 174629

Represented by THE ANTI-MONEY
LAUNDERING COUNCIL (AMLC), Present:
Petitioner,

QUISUMBING, J.,
Chairperson,
- versus - AUSTRIA MARTINEZ,*
CARPIO MORALES,
TINGA, and
HON. ANTONIO M. EUGENIO, VELASCO, JR., JJ.
JR., AS PRESIDING JUDGE OF
RTC, MANILA, BRANCH 34,
PANTALEON ALVAREZ and Promulgated:
LILIA CHENG,
Respondents. February 14, 2008

x ---------------------------------------------------------------------------------------x

DECISION

TINGA, J.:

The present petition for certiorari and prohibition under Rule 65 assails the orders
and resolutions issued by two different courts in two different cases. The courts
and cases in question are the Regional Trial Court of Manila, Branch 24, which
heard SP Case No. 06-114200[1] and the Court of Appeals, Tenth Division, which
heared CA-G.R. SP No. 95198.[2] Both cases arose as part of the aftermath of the
ruling of this Court in Agan v. PIATCO[3] nullifying the concession agreement
awarded to the Philippine International Airport Terminal Corporation (PIATCO)
over the Ninoy Aquino International AirportInternational Passenger Terminal 3
(NAIA 3) Project.

I.

Following the promulgation of Agan, a series of investigations concerning the

award of the NAIA 3 contracts to PIATCO were undertaken by the Ombudsman
and the Compliance and Investigation Staff (CIS) of petitioner Anti-Money
Laundering Council (AMLC). On 24 May 2005, the Office of the Solicitor General
(OSG) wrote the AMLC requesting the latters assistance in obtaining more
evidence to completely reveal the financial trail of corruption surrounding the
[NAIA 3] Project, and also noting that petitioner Republic of the Philippines was
presently defending itself in two international arbitration cases filed in relation to
the NAIA 3 Project.[4] The CIS conducted an intelligence database search on the
financial transactions of certain individuals involved in the award, including
respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC
Technical Committee, NAIA-IPT3 Project.[5] By this time, Alvarez had already
been charged by the Ombudsman with violation of Section 3(j) of R.A. No.
3019.[6] The search revealed that Alvarez maintained eight (8) bank accounts with
six (6) different banks.[7]

On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005, [8] whereby
the Council resolved to authorize the Executive Director of the AMLC to sign and
verify an application to inquire into and/or examine the [deposits] or investments
of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo Liongson, and Cheng Yong, and
their related web of accounts wherever these may be found, as defined under Rule
10.4 of the Revised Implementing Rules and Regulations; and to authorize the
AMLC Secretariat to conduct an inquiry into subject accounts once the Regional
Trial Court grants the application to inquire into and/or examine the bank accounts
of those four individuals.[9] The resolution enumerated the particular bank accounts
of Alvarez, Wilfredo Trinidad (Trinidad), Alfredo Liongson (Liongson) and Cheng
Yong which were to be the subject of the inquiry. [10]The rationale for the said
resolution was founded on the cited findings of the CIS that amounts were
transferred from a Hong Kong bank account owned by Jetstream Pacific Ltd.
Account to bank accounts in the Philippines maintained by Liongson and Cheng
Yong.[11] The Resolution also noted that [b]y awarding the contract to PIATCO
despite its lack of financial capacity, Pantaleon Alvarez caused undue injury to the
government by giving PIATCO unwarranted benefits, advantage, or preference in
the discharge of his official administrative functions through manifest partiality,
evident bad faith, or gross inexcusable negligence, in violation of Section 3(e) of
Republic Act No. 3019.[12]

Under the authority granted by the Resolution, the AMLC filed an application to
inquire into or examine the deposits or investments of Alvarez, Trinidad, Liongson
and Cheng Yong before the RTC of Makati, Branch 138, presided by Judge (now
Court of Appeals Justice) Sixto Marella, Jr. The application was docketed as
AMLC No. 05-005.[13] The Makati RTC heard the testimony of the Deputy
Director of the AMLC, Richard David C. Funk II, and received the documentary
evidence of the AMLC.[14] Thereafter, on 4 July 2005, the Makati RTC rendered an
Order (Makati RTC bank inquiry order) granting the AMLC the authority to
inquire and examine the subject bank accounts of Alvarez, Trinidad, Liongson and
Cheng Yong, the trial court being satisfied that there existed [p]robable cause [to]
believe that the deposits in various bank accounts, details of which appear in
paragraph 1 of the Application, are related to the offense of violation of Anti-Graft
and Corrupt Practices Act now the subject of criminal prosecution before the
Sandiganbayan as attested to by the Informations, Exhibits C, D, E, F, and
G.[15] Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to inquire
and examine the deposits, investments and related web accounts of the four. [16]

Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-
Ignacio, wrote a letter dated 2 November 2005, requesting the AMLC to
investigate the accounts of Alvarez, PIATCO, and several other entities involved in
the nullified contract. The letter adverted to probable cause to believe that the bank
accounts were used in the commission of unlawful activities that were committed
in relation to the criminal cases then pending before the
Sandiganbayan.[17] Attached to the letter was a memorandum on why the
investigation of the [accounts] is necessary in the prosecution of the above criminal
cases before the Sandiganbayan.[18]

In response to the letter of the Special Prosecutor, the AMLC promulgated on 9

December 2005 Resolution No. 121 Series of 2005,[19] which authorized the
executive director of the AMLC to inquire into and examine the accounts named in
the letter, including one maintained by Alvarez with DBS Bank and two other
accounts in the name of Cheng Yong with Metrobank. The Resolution
characterized the memorandum attached to the Special Prosecutors letter as
extensively justif[ying] the existence of probable cause that the bank accounts of
the persons and entities mentioned in the letter are related to the unlawful activity
of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019, as amended.[20]

Following the December 2005 AMLC Resolution, the Republic, through the
AMLC, filed an application[21] before the Manila RTC to inquire into and/or
examine thirteen (13) accounts and two (2) related web of accounts alleged as
having been used to facilitate corruption in the NAIA 3 Project. Among said
accounts were the DBS Bank account of Alvarez and the Metrobank accounts of
Cheng Yong. The case was raffled to Manila RTC, Branch 24, presided by
respondent Judge Antonio Eugenio, Jr., and docketed as SP Case No. 06-114200.

On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry
order) granting the Ex Parte Application expressing therein [that] the allegations in
said application to be impressed with merit, and in conformity with Section 11 of
R.A. No. 9160, as amended, otherwise known as the Anti-Money Laundering Act
(AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing Rules and
Regulations.[22]Authority was thus granted to the AMLC to inquire into the bank
accounts listed therein.

On 25 January 2006, Alvarez, through counsel, entered his appearance[23] before

the Manila RTC in SP Case No. 06-114200 and filed an Urgent Motion to Stay
Enforcement of Order of January 12, 2006.[24] Alvarez alleged that he fortuitously
learned of the bank inquiry order, which was issued following an ex
parte application, and he argued that nothing in R.A. No. 9160 authorized the
AMLC to seek the authority to inquire into bank accounts ex parte.[25] The day
after Alvarez filed his motion, 26 January 2006, the Manila RTC issued an
Order[26] staying the enforcement of its bank inquiry order and giving the Republic
five (5) days to respond to Alvarezs motion.

The Republic filed an Omnibus Motion for Reconsideration[27] of the 26 January

2006Manila RTC Order and likewise sought to strike out Alvarezs motion that led
to the issuance of said order. For his part, Alvarez filed a Reply and Motion to
Dismiss[28] the application for bank inquiry order. On 2 May 2006, the Manila RTC
issued an Omnibus Order[29] granting the Republics Motion for Reconsideration,
denying Alvarezs motion to dismiss and reinstating in full force and effect the
Order dated 12 January 2006. In the omnibus order, the Manila RTC reiterated that
the material allegations in the application for bank inquiry order filed by the
Republic stood as the probable cause for the investigation and examination of the
bank accounts and investments of the respondents.[30]

Alvarez filed on 10 May 2006 an Urgent Motion[31] expressing his

apprehension that the AMLC would immediately enforce the omnibus order and
would thereby render the motion for reconsideration he intended to file as moot
and academic; thus he sought that the Republic be refrained from enforcing the
omnibus order in the meantime. Acting on this motion, the Manila RTC, on 11
May 2006, issued an Order[32] requiring the OSG to file a comment/opposition and
reminding the parties that judgments and orders become final and executory upon
the expiration of fifteen (15) days from receipt thereof, as it is the period within
which a motion for reconsideration could be filed. Alvarez filed his Motion for
Reconsideration[33] of the omnibus order on 15 May 2006, but the motion was
denied by the Manila RTC in an Order[34] dated 5 July 2006.

On 11 July 2006, Alvarez filed an Urgent Motion and

Manifestation[35] wherein he manifested having received reliable information that
the AMLC was about to implement the Manila RTC bank inquiry order even
though he was intending to appeal from it. On the premise that only a final and
executory judgment or order could be executed or implemented, Alvarez sought
that the AMLC be immediately ordered to refrain from enforcing the Manila RTC
bank inquiry order.

On 12 July 2006, the Manila RTC, acting on Alvarezs latest motion, issued
an Order[36] directing the AMLC to refrain from enforcing the order dated January
12, 2006until the expiration of the period to appeal, without any appeal having
been filed. On the same day, Alvarez filed a Notice of Appeal[37] with the Manila
RTC.

On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for

Clarification.[38]Therein, he alleged having learned that the AMLC had began to
inquire into the bank accounts of the other persons mentioned in the application for
bank inquiry order filed by the Republic.[39] Considering that the Manila RTC bank
inquiry order was issued ex parte, without notice to those other persons, Alvarez
prayed that the AMLC be ordered to refrain from inquiring into any of the other
bank deposits and alleged web of accounts enumerated in AMLCs application with
the RTC; and that the AMLC be directed to refrain from using, disclosing or
publishing in any proceeding or venue any information or document obtained in
violation of the 11 May 2006 RTC Order.[40]
 On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC
issued an Order[41] wherein it clarified that the Ex Parte Order of this Court dated
January 12, 2006 can not be implemented against the deposits or accounts of any
of the persons enumerated in the AMLC Application until the appeal of movant
Alvarez is finally resolved, otherwise, the appeal would be rendered moot and
academic or even nugatory.[42] In addition, the AMLC was ordered not to disclose
or publish any information or document found or obtained in [v]iolation of
the May 11, 2006 Order of this Court.[43]The Manila RTC reasoned that the other
persons mentioned in AMLCs application were not served with the courts 12
January 2006 Order. This 25 July 2006 Manila RTC Order is the first of the four
rulings being assailed through this petition.

In response, the Republic filed an Urgent Omnibus Motion for

Reconsideration[44]dated 27 July 2006, urging that it be allowed to immediately
enforce the bank inquiry order against Alvarez and that Alvarezs notice of appeal
be expunged from the records since appeal from an order of inquiry is disallowed
under the Anti money Laundering Act (AMLA).

Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a

Petition for Certiorari, Prohibition and Mandamus with Application for TRO
and/or Writ of Preliminary Injunction[45] dated 10 July 2006, directed against the
Republic of the Philippines through the AMLC, Manila RTC Judge Eugenio, Jr.
and Makati RTC Judge Marella, Jr.. She identified herself as the wife of Cheng
Yong[46] with whom she jointly owns a conjugal bank account with Citibank that is
covered by the Makati RTC bank inquiry order, and two conjugal bank accounts
with Metrobank that are covered by the Manila RTC bank inquiry order. Lilia
Cheng imputed grave abuse of discretion on the part of the Makati and Manila
RTCs in granting AMLCs ex parte applications for a bank inquiry order, arguing
among others that the ex parte applications violated her constitutional right to due
process, that the bank inquiry order under the AMLA can only be granted in
connection with violations of the AMLA and that the AMLA can not apply to bank
accounts opened and transactions entered into prior to the effectivity of the AMLA
or to bank accounts located outside the Philippines.[47]

On 1 August 2006, the Court of Appeals, acting on Lilia Chengs petition,

issued a Temporary Restraining Order[48] enjoining the Manila and Makati trial
courts from implementing, enforcing or executing the respective bank inquiry
orders previously issued, and the AMLC from enforcing and implementing such
orders. On even date, the Manila RTC issued an Order[49] resolving to hold in
abeyance the resolution of the urgent omnibus motion for reconsideration then
pending before it until the resolution of Lilia Chengs petition for certiorari with the
Court of Appeals. The Court of Appeals Resolution directing the issuance of the
temporary restraining order is the second of the four rulings assailed in the present
petition.

The third assailed ruling[50] was issued on 15 August 2006 by the Manila
RTC, acting on the Urgent Motion for Clarification[51] dated 14 August 2006 filed
by Alvarez. It appears that the 1 August 2006 Manila RTC Order had amended its
previous 25 July 2006 Order by deleting the last paragraph which stated that the
AMLC should not disclose or publish any information or document found or
obtained in violation of the May 11, 2006 Order of this Court.[52] In this new
motion, Alvarez argued that the deletion of that paragraph would allow the AMLC
to implement the bank inquiry orders and publish whatever information it might
obtain thereupon even before the final orders of the Manila RTC could become
final and executory.[53] In the 15 August 2006 Order, the Manila RTC reiterated
that the bank inquiry order it had issued could not be implemented or enforced by
the AMLC or any of its representatives until the appeal therefrom was finally
resolved and that any enforcement thereof would be unauthorized.[54]
 The present Consolidated Petition [55] for certiorari and prohibition under
Rule 65 was filed on 2 October 2006, assailing the two Orders of the Manila RTC
dated 25 July and 15 August 2006 and the Temporary Restraining Order dated 1
August 2006 of the Court of Appeals. Through an Urgent Manifestation and
Motion[56] dated 9 October 2006, petitioner informed the Court that on 22
September 2006, the Court of Appeals hearing Lilia Chengs petition had granted a
writ of preliminary injunction in her favor.[57]Thereafter, petitioner sought as well
the nullification of the 22 September 2006 Resolution of the Court of Appeals,
thereby constituting the fourth ruling assailed in the instant petition.[58]

The Court had initially granted a Temporary Restraining Order [59] dated 6
October 2006 and later on a Supplemental Temporary Restraining
Order[60] dated 13 October 2006 in petitioners favor, enjoining the implementation
of the assailed rulings of the Manila RTC and the Court of Appeals. However, on
respondents motion, the Court, through a Resolution[61] dated 11 December 2006,
suspended the implementation of the restraining orders it had earlier issued.

Oral arguments were held on 17 January 2007. The Court consolidated the
issues for argument as follows:

1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15
August 2006 which deferred the implementation of its Order dated 12 January
2006, and the Court of Appeals, in issuing its Resolution dated 1 August 2006,
which ordered the status quo in relation to the 1 July 2005 Order of the RTC-
Makati and the 12 January 2006 Order of the RTC-Manila, both of which
authorized the examination of bank accounts under Section 11 of Rep. Act No.
9160 (AMLA), commit grave abuse of discretion?
(a) Is an application for an order authorizing inquiry into or
examination of bank accounts or investments under Section 11 of
the AMLA ex-parte in nature or one which requires notice and
hearing?

(b) What legal procedures and standards should be

observed in the conduct of the proceedings for the issuance of said
order?
 (c) Is such order susceptible to legal challenges and judicial
review?

2. Is it proper for this Court at this time and in this case to inquire into
and pass upon the validity of the 1 July 2005 Order of the RTC-Makati and the
12 January 2006 Order of the RTC-Manila, considering the pendency of CA
G.R. SP No. 95-198 (Lilia Cheng v. Republic) wherein the validity of both
orders was challenged?[62]

After the oral arguments, the parties were directed to file their respective
memoranda, which they did,[63] and the petition was thereafter deemed submitted
for resolution.

II.

Petitioners general advocacy is that the bank inquiry orders issued by

the Manilaand Makati RTCs are valid and immediately enforceable whereas the
assailed rulings, which effectively stayed the enforcement of the Manila and
Makati RTCs bank inquiry orders, are sullied with grave abuse of discretion. These
conclusions flow from the posture that a bank inquiry order, issued upon a finding
of probable cause, may be issued ex parte and, once issued, is immediately
executory. Petitioner further argues that the information obtained following the
bank inquiry is necessarily beneficial, if not indispensable, to the AMLC in
discharging its awesome responsibility regarding the effective implementation of
the AMLA and that any restraint in the disclosure of such information to
appropriate agencies or other judicial fora would render meaningless the relief
supplied by the bank inquiry order.

Petitioner raises particular arguments questioning Lilia Chengs right to seek

injunctive relief before the Court of Appeals, noting that not one of the bank
inquiry orders is directed against her. Her cryptic assertion that she is the wife of
Cheng Yong cannot, according to petitioner, metamorphose into the requisite legal
standing to seek redress for an imagined injury or to maintain an action in behalf of
another. In the same breath, petitioner argues that Alvarez cannot assert any
violation of the right to financial privacy in behalf of other persons whose bank
accounts are being inquired into, particularly those other persons named in the
Makati RTC bank inquiry order who did not take any step to oppose such orders
before the courts.

Ostensibly, the proximate question before the Court is whether a bank

inquiry order issued in accordance with Section 10 of the AMLA may be stayed by
injunction. Yet in arguing that it does, petitioner relies on what it posits as the final
and immediately executory character of the bank inquiry orders issued by
the Manila and Makati RTCs. Implicit in that position is the notion that the inquiry
orders are valid, and such notion is susceptible to review and validation based on
what appears on the face of the orders and the applications which triggered their
issuance, as well as the provisions of the AMLA governing the issuance of such
orders. Indeed, to test the viability of petitioners argument, the Court will have to
be satisfied that the subject inquiry orders are valid in the first place. However,
even from a cursory examination of the applications for inquiry order and the
orders themselves, it is evident that the orders are not in accordance with law.

III.

A brief overview of the AMLA is called for.

Money laundering has been generally defined by the International Criminal

Police Organization (Interpol) `as any act or attempted act to conceal or disguise
the identity of illegally obtained proceeds so that they appear to have originated
from legitimate sources.[64] Even before the passage of the AMLA, the problem
was addressed by the Philippine government through the issuance of various
circulars by the Bangko Sentral ng Pilipinas. Yet ultimately, legislative
proscription was necessary, especially with the inclusion of the Philippines in the
Financial Action Task Forces list of non-cooperative countries and territories in the
fight against money laundering.[65] The original AMLA, Republic Act (R.A.) No.
9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003.

Section 4 of the AMLA states that [m]oney laundering is a crime whereby

the proceeds of an unlawful activity as [defined in the law] are transacted, thereby
making them appear to have originated from legitimate sources.[66] The section
further provides the three modes through which the crime of money laundering is
committed. Section 7 creates the AMLC and defines its powers, which generally
relate to the enforcement of the AMLA provisions and the initiation of legal
actions authorized in the AMLA such as civil forefeiture proceedings and
complaints for the prosecution of money laundering offenses.[67]

In addition to providing for the definition and penalties for the crime of
money laundering, the AMLA also authorizes certain provisional remedies that
would aid the AMLC in the enforcement of the AMLA. These are the freeze order
authorized under Section 10, and the bank inquiry order authorized under Section
11.

Respondents posit that a bank inquiry order under Section 11 may be obtained
only upon the pre-existence of a money laundering offense case already filed
before the courts.[68]The conclusion is based on the phrase upon order of any
competent court in cases of violation of this Act, the word cases generally
understood as referring to actual cases pending with the courts.

We are unconvinced by this proposition, and agree instead with the then
Solicitor General who conceded that the use of the phrase in cases of was
unfortunate, yet submitted that it should be interpreted to mean in the event there
are violations of the AMLA, and not that there are already cases pending in court
concerning such violations.[69] If the contrary position is adopted, then the bank
inquiry order would be limited in purpose as a tool in aid of litigation of live cases,
and wholly inutile as a means for the government to ascertain whether there is
sufficient evidence to sustain an intended prosecution of the account holder for
violation of the AMLA. Should that be the situation, in all likelihood the AMLC
would be virtually deprived of its character as a discovery tool, and thus would
become less circumspect in filing complaints against suspect account holders.
After all, under such set-up the preferred strategy would be to allow or even
encourage the indiscriminate filing of complaints under the AMLA with the hope
or expectation that the evidence of money laundering would somehow surface
during the trial. Since the AMLC could not make use of the bank inquiry order to
determine whether there is evidentiary basis to prosecute the suspected
malefactors, not filing any case at all would not be an alternative. Such
unwholesome set-up should not come to pass. Thus Section 11 cannot be
interpreted in a way that would emasculate the remedy it has established and
encourage the unfounded initiation of complaints for money laundering.

Still, even if the bank inquiry order may be availed of without need of a pre-
existing case under the AMLA, it does not follow that such order may be availed
of ex parte. There are several reasons why the AMLA does not generally
sanction ex parte applications and issuances of the bank inquiry order.

IV.

It is evident that Section 11 does not specifically authorize, as a general rule, the
issuance ex parte of the bank inquiry order. We quote the provision in full:

SEC. 11. Authority to Inquire into Bank Deposits. ― Notwithstanding the

provisions of Republic Act No. 1405, as amended, Republic Act No. 6426, as
amended, Republic Act No. 8791, and other laws, the AMLC may inquire into or
examine any particular deposit or investment with any banking institution or non
bank financial institution upon order of any competent court in cases of violation
of this Act, when it has been established that there is probable cause that the
deposits or investments are related to an unlawful activity as defined in
Section 3(i) hereof or a money laundering offense under Section 4 hereof,
except that no court order shall be required in cases involving unlawful
activities defined in Sections 3(i)1, (2) and (12).
 To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP)
may inquire into or examine any deposit of investment with any banking
institution or non bank financial institution when the examination is made in the
course of a periodic or special examination, in accordance with the rules of
examination of the BSP.[70](Emphasis supplied)

Of course, Section 11 also allows the AMLC to inquire into bank accounts
without having to obtain a judicial order in cases where there is probable cause that
the deposits or investments are related to kidnapping for ransom, [71] certain
violations of the Comprehensive Dangerous Drugs Act of 2002,[72] hijacking and
other violations under R.A. No. 6235, destructive arson and murder. Since such
special circumstances do not apply in this case, there is no need for us to pass
comment on this proviso. Suffice it to say, the proviso contemplates a situation
distinct from that which presently confronts us, and for purposes of the succeeding
discussion, our reference to Section 11 of the AMLA excludes said proviso.

In the instances where a court order is required for the issuance of the bank inquiry
order, nothing in Section 11 specifically authorizes that such court order may be
issued ex parte. It might be argued that this silence does not preclude the ex
parte issuance of the bank inquiry order since the same is not prohibited under
Section 11. Yet this argument falls when the immediately preceding provision,
Section 10, is examined.

SEC. 10. Freezing of Monetary Instrument or Property. ― The Court of

Appeals, upon application ex parte by the AMLC and after determination
that probable causeexists that any monetary instrument or property is in any way
related to an unlawful activity as defined in Section 3(i) hereof, may issue
a freeze order which shall be effective immediately. The freeze order shall be
for a period of twenty (20) days unless extended by the court.[73]

Although oriented towards different purposes, the freeze order under Section 10
and the bank inquiry order under Section 11 are similar in that they are
extraordinary provisional reliefs which the AMLC may avail of to effectively
combat and prosecute money laundering offenses. Crucially, Section 10 uses
specific language to authorize an ex parteapplication for the provisional relief
therein, a circumstance absent in Section 11. If indeed the legislature had intended
to authorize ex parte proceedings for the issuance of the bank inquiry order, then it
could have easily expressed such intent in the law, as it did with the freeze order
under Section 10.

Even more tellingly, the current language of Sections 10 and 11 of the

AMLA was crafted at the same time, through the passage of R.A. No. 9194. Prior
to the amendatory law, it was the AMLC, not the Court of Appeals, which had
authority to issue a freeze order, whereas a bank inquiry order always then
required, without exception, an order from a competent court.[74] It was through the
same enactment that ex parte proceedings were introduced for the first time into
the AMLA, in the case of the freeze order which now can only be issued by the
Court of Appeals. It certainly would have been convenient, through the same
amendatory law, to allow a similar ex parte procedure in the case of a bank inquiry
order had Congress been so minded. Yet nothing in the provision itself, or even the
available legislative record, explicitly points to an ex parte judicial procedure in
the application for a bank inquiry order, unlike in the case of the freeze order.

That the AMLA does not contemplate ex parte proceedings in applications for
bank inquiry orders is confirmed by the present implementing rules and
regulations of the AMLA, promulgated upon the passage of R.A. No. 9194. With
respect to freeze orders under Section 10, the implementing rules do expressly
provide that the applications for freeze orders be filed ex parte,[75] but no similar
clearance is granted in the case of inquiry orders under Section 11.[76] These
implementing rules were promulgated by the Bangko Sentral ng Pilipinas, the
Insurance Commission and the Securities and Exchange Commission,[77] and if it
was the true belief of these institutions that inquiry orders could be issued ex
parte similar to freeze orders, language to that effect would have been
incorporated in the said Rules. This is stressed not because the implementing rules
could authorize ex parte applications for inquiry orders despite the absence of
statutory basis, but rather because the framers of the law had no intention to allow
such ex parteapplications.

Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC[78] to
enforce the provisions of the AMLA specifically authorize ex parte applications
with respect to freeze orders under Section 10[79] but make no similar authorization
with respect to bank inquiry orders under Section 11.

The Court could divine the sense in allowing ex parte proceedings under
Section 10 and in proscribing the same under Section 11. A freeze order under
Section 10 on the one hand is aimed at preserving monetary instruments or
property in any way deemed related to unlawful activities as defined in Section
3(i) of the AMLA. The owner of such monetary instruments or property would
thus be inhibited from utilizing the same for the duration of the freeze order. To
make such freeze order anteceded by a judicial proceeding with notice to the
account holder would allow for or lead to the dissipation of such funds even before
the order could be issued.

On the other hand, a bank inquiry order under Section 11 does not
necessitate any form of physical seizure of property of the account holder. What
the bank inquiry order authorizes is the examination of the particular deposits or
investments in banking institutions or non-bank financial institutions. The
monetary instruments or property deposited with such banks or financial
institutions are not seized in a physical sense, but are examined on particular
details such as the account holders record of deposits and transactions. Unlike the
assets subject of the freeze order, the records to be inspected under a bank inquiry
order cannot be physically seized or hidden by the account holder. Said records are
in the possession of the bank and therefore cannot be destroyed at the instance of
the account holder alone as that would require the extraordinary cooperation and
devotion of the bank.
Interestingly, petitioners memorandum does not attempt to demonstrate before the
Court that the bank inquiry order under Section 11 may be issued ex parte,
although the petition itself did devote some space for that argument. The petition
argues that the bank inquiry order is a special and peculiar remedy, drastic in its
name, and made necessary because of a public necessity [t]hus, by its very nature,
the application for an order or inquiry must necessarily, be ex parte. This argument
is insufficient justification in light of the clear disinclination of Congress to allow
the issuance ex parte of bank inquiry orders under Section 11, in contrast to the
legislatures clear inclination to allow the ex parte grant of freeze orders under
Section 10.

Without doubt, a requirement that the application for a bank inquiry order be
done with notice to the account holder will alert the latter that there is a plan to
inspect his bank account on the belief that the funds therein are involved in an
unlawful activity or money laundering offense.[80] Still, the account holder so
alerted will in fact be unable to do anything to conceal or cleanse his bank account
records of suspicious or anomalous transactions, at least not without the whole-
hearted cooperation of the bank, which inherently has no vested interest to aid the
account holder in such manner.

V.

The necessary implication of this finding that Section 11 of the AMLA does
not generally authorize the issuance ex parte of the bank inquiry order would be
that such orders cannot be issued unless notice is given to the owners of the
account, allowing them the opportunity to contest the issuance of the order.
Without such a consequence, the legislated distinction between ex
parte proceedings under Section 10 and those which are not ex parte under Section
11 would be lost and rendered useless.
 There certainly is fertile ground to contest the issuance of an ex parte order.
Section 11 itself requires that it be established that there is probable cause that the
deposits or investments are related to unlawful activities, and it obviously is the
court which stands as arbiter whether there is indeed such probable cause. The
process of inquiring into the existence of probable cause would involve the
function of determination reposed on the trial court. Determination clearly implies
a function of adjudication on the part of the trial court, and not a mechanical
application of a standard pre-determination by some other body. The word
"determination" implies deliberation and is, in normal legal contemplation,
equivalent to "the decision of a court of justice."[81]

The court receiving the application for inquiry order cannot simply take the
AMLCs word that probable cause exists that the deposits or investments are related
to an unlawful activity. It will have to exercise its
own determinative function in order to be convinced of such fact. The account
holder would be certainly capable of contesting such probable cause if given the
opportunity to be apprised of the pending application to inquire into his account;
hence a notice requirement would not be an empty spectacle. It may be so that the
process of obtaining the inquiry order may become more cumbersome or
prolonged because of the notice requirement, yet we fail to see any unreasonable
burden cast by such circumstance. After all, as earlier stated, requiring notice to the
account holder should not, in any way, compromise the integrity of the bank
records subject of the inquiry which remain in the possession and control of the
bank.

Petitioner argues that a bank inquiry order necessitates a finding of probable

cause, a characteristic similar to a search warrant which is applied to and heard ex
parte. We have examined the supposed analogy between a search warrant and a
bank inquiry order yet we remain to be unconvinced by petitioner.
 The Constitution and the Rules of Court prescribe particular requirements
attaching to search warrants that are not imposed by the AMLA with respect to
bank inquiry orders. A constitutional warrant requires that the judge personally
examine under oath or affirmation the complainant and the witnesses he may
produce,[82] such examination being in the form of searching questions and
answers.[83] Those are impositions which the legislative did not specifically
prescribe as to the bank inquiry order under the AMLA, and we cannot find
sufficient legal basis to apply them to Section 11 of the AMLA. Simply put, a bank
inquiry order is not a search warrant or warrant of arrest as it contemplates a direct
object but not the seizure of persons or property.

Even as the Constitution and the Rules of Court impose a high procedural
standard for the determination of probable cause for the issuance of search
warrants which Congress chose not to prescribe for the bank inquiry order under
the AMLA, Congress nonetheless disallowed ex parte applications for the inquiry
order. We can discern that in exchange for these procedural standards normally
applied to search warrants, Congress chose instead to legislate a right to notice and
a right to be heard characteristics of judicial proceedings which are not ex parte.
Absent any demonstrable constitutional infirmity, there is no reason for us to
dispute such legislative policy choices.

VI.

The Courts construction of Section 11 of the AMLA is undoubtedly

influenced by right to privacy considerations. If sustained, petitioners argument
that a bank account may be inspected by the government following an ex
parte proceeding about which the depositor would know nothing would have
significant implications on the right to privacy, a right innately cherished by all
notwithstanding the legally recognized exceptions thereto. The notion that the
government could be so empowered is cause for concern of any individual who
values the right to privacy which, after all, embodies even the right to be let

alone, the most comprehensive of rights and the right most valued by civilized
people.[84]

One might assume that the constitutional dimension of the right to privacy,
as applied to bank deposits, warrants our present inquiry. We decline to do so.
Admittedly, that question has proved controversial in American jurisprudence.
Notably, the United States Supreme Court in U.S. v. Miller[85] held that there was
no legitimate expectation of privacy as to the bank records of a
depositor.[86] Moreover, the text of our Constitution has not bothered with the
triviality of allocating specific rights peculiar to bank deposits.

However, sufficient for our purposes, we can assert there is a right to privacy
governing bank accounts in the Philippines, and that such right finds application to
the case at bar. The source of such right is statutory, expressed as it is in R.A. No.
1405 otherwise known as the Bank Secrecy Act of 1955. The right to privacy is
enshrined in Section 2 of that law, to wit:

SECTION 2. All deposits of whatever nature with banks or banking

institutions in the Philippines including investments in bonds issued by the
Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely confidential
nature and may not be examined, inquired or looked into by any person,
government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the litigation. (Emphasis
supplied)

Because of the Bank Secrecy Act, the confidentiality of bank deposits

remains a basic state policy in the Philippines.[87] Subsequent laws, including the
AMLA, may have added exceptions to the Bank Secrecy Act, yet the secrecy of
bank deposits still lies as the general rule. It falls within the zones of privacy
recognized by our laws.[88] The framers of the 1987 Constitution likewise
recognized that bank accounts are not covered by either the right to
information[89] under Section 7, Article
III or under the requirement of fullpublic disclosure[90] under
Section 28, Article II.[91] Unless the Bank Secrecy Act is repealed or

amended, the legal order is obliged to conserve the absolutely confidential nature
of Philippine bank deposits.

Any exception to the rule of absolute confidentiality must be specifically

legislated. Section 2 of the Bank Secrecy Act itself prescribes exceptions whereby
these bank accounts may be examined by any person, government official, bureau
or office; namely when: (1) upon written permission of the depositor; (2) in cases
of impeachment; (3) the examination of bank accounts is upon order of a
competent court in cases of bribery or dereliction of duty of public officials; and
(4) the money deposited or invested is the subject matter of the litigation. Section 8
of R.A. Act No. 3019, the Anti-Graft and Corrupt Practices Act, has been
recognized by this Court as constituting an additional exception to the rule of
absolute confidentiality,[92] and there have been other similar recognitions as
well.[93]
 The AMLA also provides exceptions to the Bank Secrecy Act. Under
Section 11, the AMLC may inquire into a bank account upon order of any
competent court in cases of violation of the AMLA, it having been established that
there is probable cause that the deposits or investments are related to unlawful
activities as defined in Section 3(i) of the law, or a money laundering offense under
Section 4 thereof. Further, in instances where there is probable cause that the
deposits or investments are related to kidnapping for ransom,[94] certain violations
of the Comprehensive Dangerous Drugs Act of 2002,[95]hijacking and other
violations under R.A. No. 6235, destructive arson and murder, then there is no
need for the AMLC to obtain a court order before it could inquire into such
accounts.

It cannot be successfully argued the proceedings relating to the bank inquiry

order under Section 11 of the AMLA is a litigation encompassed in one of the
exceptions to the Bank Secrecy Act which is when the money deposited or
invested is the subject matter of the litigation. The orientation of the bank inquiry
order is simply to serve as a provisional relief or remedy. As earlier stated, the
application for such does not entail a full-blown trial.

Nevertheless, just because the AMLA establishes additional exceptions to

the Bank Secrecy Act it does not mean that the later law has dispensed with the
general principle established in the older law that [a]ll deposits of whatever nature
with banks or banking institutions in the Philippines x x x are hereby considered as
of an absolutely confidential nature.[96] Indeed, by force of statute, all bank deposits
are absolutely confidential, and that nature is unaltered even by the legislated
exceptions referred to above. There is disfavor towards construing these exceptions
in such a manner that would authorize unlimited discretion on the part of the
government or of any party seeking to enforce those exceptions and inquire into
bank deposits. If there are doubts in upholding the absolutely confidential nature of
bank deposits against affirming the authority to inquire into such accounts, then
such doubts must be resolved in favor of the former. Such a stance would persist
unless Congress passes a law reversing the general state policy of preserving the
absolutely confidential nature of Philippine bank accounts.

The presence of this statutory right to privacy addresses at least one of the
arguments raised by petitioner, that Lilia Cheng had no personality to assail the
inquiry orders before the Court of Appeals because she was not the subject of said
orders. AMLC Resolution No. 75, which served as the basis in the successful
application for the Makati inquiry order, expressly adverts to Citibank Account No.
88576248 owned by Cheng Yong and/or Lilia G. Cheng with Citibank
N.A.,[97] whereas Lilia Chengs petition before the Court of Appeals is accompanied
by a certification from Metrobank that Account Nos. 300852436-0 and
700149801-7, both of which are among the subjects of the Manila inquiry order,
are accounts in the name of Yong Cheng or Lilia Cheng.[98] Petitioner does not
specifically deny that Lilia Cheng holds rights of ownership over the three said
accounts, laying focus instead on the fact that she was not named as a subject of
either the Makati or Manila RTC inquiry orders. We are reasonably convinced that
Lilia Cheng has sufficiently demonstrated her joint ownership of the three
accounts, and such conclusion leads us to acknowledge that she has the standing to
assail via certiorari the inquiry orders authorizing the examination of her bank
accounts as the orders interfere with her statutory right to maintain the secrecy of
said accounts.

While petitioner would premise that the inquiry into Lilia Chengs accounts
finds root in Section 11 of the AMLA, it cannot be denied that the authority to
inquire under Section 11 is only exceptional in character, contrary as it is to the
general rule preserving the secrecy of bank deposits. Even though she may not
have been the subject of the inquiry orders, her bank accounts nevertheless were,
and she thus has the standing to vindicate the right to secrecy that attaches to said
accounts and their owners. This statutory right to privacy will not prevent the
courts from authorizing the inquiry anyway upon the fulfillment of the
requirements set forth under Section 11 of the AMLA or Section 2 of the Bank
Secrecy Act; at the same time, the owner of the accounts have the right to
challenge whether the requirements were indeed complied with.

VII.

There is a final point of concern which needs to be addressed. Lilia Cheng

argues that the AMLA, being a substantive penal statute, has no retroactive effect
and the bank inquiry order could not apply to deposits or investments opened prior
to the effectivity of Rep. Act No. 9164, or on 17 October 2001. Thus, she
concludes, her subject bank accounts, opened between 1989 to 1990, could not be
the subject of the bank inquiry order lest there be a violation of the constitutional
prohibition against ex post facto laws.

No ex post facto law may be enacted,[99] and no law may be construed in

such fashion as to permit a criminal prosecution offensive to the ex post
facto clause. As applied to the AMLA, it is plain that no person may be prosecuted
under the penal provisions of the AMLA for acts committed prior to the enactment
of the law on 17 October 2001. As much was understood by the lawmakers since
they deliberated upon the AMLA, and indeed there is no serious dispute on that
point.

Does the proscription against ex post facto laws apply to the interpretation of
Section 11, a provision which does not provide for a penal sanction but which
merely authorizes the inspection of suspect accounts and deposits? The answer is
in the affirmative. In this jurisdiction, we have defined an ex post facto law as one
which either:

(1) makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;
 (3) changes the punishment and inflicts a greater punishment than the
law annexed to the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon
less or different testimony than the law required at the time of the commission
of the offense;
(5) assuming to regulate civil rights and remedies only, in effect
imposes penalty or deprivation of a right for something which when done was
lawful; and
(6) deprives a person accused of a crime of some lawful protection
to which he has become entitled, such as the protection of a former
conviction or acquittal, or a proclamation of amnesty. (Emphasis
supplied)[100]

Prior to the enactment of the AMLA, the fact that bank accounts or deposits
were involved in activities later on enumerated in Section 3 of the law did not, by
itself, remove such accounts from the shelter of absolute confidentiality. Prior to
the AMLA, in order that bank accounts could be examined, there was need to
secure either the written permission of the depositor or a court order authorizing
such examination, assuming that they were involved in cases of bribery or
dereliction of duty of public officials, or in a case where the money deposited or
invested was itself the subject matter of the litigation. The passage of the AMLA
stripped another layer off the rule on absolute confidentiality that provided a
measure of lawful protection to the account holder. For that reason, the application
of the bank inquiry order as a means of inquiring into records of transactions
entered into prior to the passage of the AMLA would be constitutionally infirm,
offensive as it is to the ex post facto clause.

Still, we must note that the position submitted by Lilia Cheng is much
broader than what we are willing to affirm. She argues that the proscription
against ex post facto laws goes as far as to prohibit any inquiry into deposits or
investments included in bank accounts opened prior to the effectivity of the AMLA
even if the suspect transactions were entered into when the law had already taken
effect. The Court recognizes that if this argument were to be affirmed, it would
create a horrible loophole in the AMLA that would in turn supply the means
to fearlessly engage in money laundering in the Philippines; all that the criminal
has to do is to make sure that the money laundering activity is facilitated through a
bank account opened prior to 2001. Lilia Cheng admits that actual money
launderers could utilize the ex post facto provision of the Constitution as a shield
but that the remedy lay with Congress to amend the law. We can hardly presume
that Congress intended to enact a self-defeating law in the first place, and the
courts are inhibited from such a construction by the cardinal rule that a law should
be interpreted with a view to upholding rather than destroying it.[101]

Besides, nowhere in the legislative record cited by Lilia Cheng does it

appear that there was an unequivocal intent to exempt from the bank inquiry order
all bank accounts opened prior to the passage of the AMLA. There is a cited
exchange between Representatives Ronaldo Zamora and Jaime Lopez where the
latter confirmed to the former that deposits are supposed to be exempted from
scrutiny or monitoring if they are already in place as of the time the law is
enacted.[102] That statement does indicate that transactions already in place when
the AMLA was passed are indeed exempt from scrutiny through a bank inquiry
order, but it cannot yield any interpretation that records of transactions undertaken
after the enactment of the AMLA are similarly exempt. Due to the absence of cited
authority from the legislative record that unqualifiedly supports respondent Lilia
Chengs thesis, there is no cause for us to sustain her interpretation of the AMLA,
fatal as it is to the anima of that law.

IX.

We are well aware that Lilia Chengs petition presently pending before the
Court of Appeals likewise assails the validity of the subject bank inquiry orders
and precisely seeks the annulment of said orders. Our current declarations may
indeed have the effect of preempting that0 petition. Still, in order for this Court to
rule on the petition at bar which insists on the enforceability of the said bank
inquiry orders, it is necessary for us to consider and rule on the same question
which after all is a pure question of law.

WHEREFORE, the PETITION is DISMISSED. No pronouncement as to

costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
MA. ALICIA AUSTRIA MARTINEZ CONCHITA CARPIO MORALES
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in

consultation before the case was assigned to the writer of the opinion of the
Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.
 REYNATO S. PUNO
Chief Justice

SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated
November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the
Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals
(CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court
(RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo
City sometime in 1990. Private complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner
the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items entrusted to him,
but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's
bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the
total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under expressed
obligation on the part of said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and
with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation,
did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his
own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and
despite repeated demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage and
prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy.
On the other hand, the defense presented the lone testimony of petitioner, which can be
summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in
the financing business of extending loans to Base employees. For every collection made, they earn
a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to
sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as
evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did
not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting
of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify
private complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the
costs of suit.

SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed
the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years
and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1
year for each additional ₱10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT
[PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY
TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE

INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE
ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR
REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT
ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE

INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE

STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS

CASE;
 4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following
counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse
of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial
court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a
receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was
merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner
never objected to the admissibility of the said evidence at the time it was identified, marked and
testified upon in court by private complainant. The CA also correctly pointed out that petitioner also
failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even
admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection
shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed
against him. He contends that the Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the matters of form
and substance in the Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the prejudice of the owner6 and that the
time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and
the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter
fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the
offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a reading of the subject Information
shows compliance with the foregoing rule. That the time of the commission of the offense was stated
as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso facto defective. Moreover,
the said date is also near the due date within which accused-appellant should have delivered the
proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same; (b) that there
be misappropriation or conversion of such money or property by the offender or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another;
and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and
he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be
formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has
indeed been made upon the person charged, since even a mere query as to the whereabouts of the
money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v.
People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa
need not be formal or written. The appellate court observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the
law would have stated so. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence
of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private complainant, to the
prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor
of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is even conclusive
and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.16 Truth is established not by the
number of witnesses, but by the quality of their testimonies, for in determining the value and
credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question
of the continued validity of imposing on persons convicted of crimes involving property came up. The
legislature apparently pegged these penalties to the value of the money and property in 1930 when it
enacted the Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to the Court en
banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the
Court to give their academic opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of
the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932. However, this Court cannot modify the
said range of penalties because that would constitute judicial legislation. What the legislature's
perceived failure in amending the penalties provided for in the said crimes cannot be remedied
through this Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any
act which it may deem proper to repress and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of the sentence, when
a strict enforcement of the provisions of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the
offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is
not punishable by law and the court finds it proper to repress, the remedy is to render the proper
decision and thereafter, report to the Chief Executive, through the Department of Justice, the
reasons why the same act should be the subject of penal legislation. The premise here is that a
deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is already punishable
by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as
in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief
Executive the reasons why the court considers the said penalty to be non-commensurate with the
act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article
5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that
there can exist no punishable act except those previously and specifically provided for by penal
statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit
its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the
ground that the strict enforcement of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive
with a recommendation for an amendment or modification of the legal provisions which it believes to
be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino
and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations
of particular statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the
legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to
the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition of the penalties. It must be
remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes
against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with
the present times. For all we know, the legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts which have increased tremendously through
the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the
coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount
of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply,
from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the
provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
 thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of
the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of
hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years
and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional minimum period (2
months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty
imposed is almost the same as the penalty proposed. In fact, after the application of the
Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2
months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the
said minimum period and may even apply for probation. Moreover, under the proposal, the minimum
penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period
under the existing law. Thus, it would seem that the present penalty imposed under the law is not at
all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of
Theft and the damage caused in the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper penalty to be imposed, would be
too wide and the penalty imposable would no longer be commensurate to the act committed and the
value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties
are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by

prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision

correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6
years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor

medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month
and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.
 x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by

prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8
years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by

prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto

mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4
months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and
1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving higher
amounts would receive heavier penalties; however, this is no longer achieved, because a person
who steals ₱142,000.00 would receive the same penalty as someone who steals hundreds of
millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that
the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the
penalty that should be applied in case the amount of the thing subject matter of the crime exceeds
₱22,000.00? It seems that the proposition poses more questions than answers, which leads us even
more to conclude that the appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy
is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the
amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel
and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled
that three things must be done to decide whether a sentence is proportional to a specific crime, viz.;
(1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare
the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes
are subject to the same penalty or to less serious penalties; and (3) Compare the sentences
imposed for commission of the same crime in other jurisdictions.

However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter’s recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment
and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and allowing the helper to
be a member of the household, thus entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For
example, in the crime of Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve
thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the acts
committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-
Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government
is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15
years)32 under the Anti-Graft Law will now become higher. This should not be the case, because in
the crime of malversation, the public official takes advantage of his public position to embezzle the
fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment
or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of
the thing unlawfully taken and no longer the element of force employed in entering the premises. It
may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article
280, and this kind of robbery because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force
upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the
intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if
the value of the damage caused exceeds ₱1,000.00, but under the proposal, the value of the
damage will now become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1
day to 6 months). And, if the value of the damaged property does not exceed ₱200.00, the penalty is
arresto menor or a fine of not less than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under this situation will now become
excessive and afflictive in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of
the damage caused, to wit: Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling
a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose
Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable
officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34The law treats cutting, gathering, collecting and possessing timber or
other forest products without license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the
offense is, again, based on the value of the timber or forest products involved in the offense. Now, if
we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles
309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law
is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws,
and other related provisions of these laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of
the Revised Penal Code by merely making a study of the applicability of the penalties imposable in
the present times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or
even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56)
bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were promulgated decades ago
when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy
away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning
in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code
also does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or
not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are clear and not subject to
any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should only
impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested, however, from now until the law is properly amended
by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when every accused convicted of
the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what
the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by
the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has
been questioned before this Court. There is, arguably, no punishment more cruel than that of death.
Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act
No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a
"cruel punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it
was through an act of Congress suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision
of the law from which the proper penalty emanates unconstitutional in the present action. Not only is
it violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally
aimed at the form or character of the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our
modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are
other factors and variables that need to be taken into consideration, researched, and deliberated
upon before the said values could be accurately and properly adjusted. The effects on the society,
the injured party, the accused, its socio-economic impact, and the likes must be painstakingly
evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these
changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress.
Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have
to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:
... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of
those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One
Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment
that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the
role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court should not impose an obsolete
penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes
against persons, which the Court had previously adjusted in light of current times, like in the case of
People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues,
all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such
immense power belongs to Congress and the Court should refrain from crossing this clear-cut
divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is
awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only
based on the value of money, but on several other factors. Further, since the law is silent as to the
maximum amount that can be awarded and only pegged the minimum sum, increasing the amount
granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC.
The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of seven (7)
years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly
instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter 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 not exceed twenty years. In such case, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case,
Article 65 of the same Code requires the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed
are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
mayor minimum should be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the
amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be
imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by
law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months
and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the
maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1
day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking.
The Court should not pre-empt Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July
30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and
ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal
as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives.
SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

See Concurring and Dissenting Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

See: Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

I take no part due to prior action in the CA I join the Dissent of J. Abad
LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO
Associate Justice Associate Justice

See Dissenting Opinion

MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

No Part
BVIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

FIRST DIVISION
G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received
an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court viaa
petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court. 1âw phi 1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the
latter's right to due process was violated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was
acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to
be presented at the proper time.1 At any rate, it has been ruled that the mere invocation of the
immunity clause does not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done
in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General, does
not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions.5 As already mentioned above, the commission of a
crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the validity of the information or
otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âw phi 1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

FIRST DIVISION

G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher
and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal
charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the
house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to
have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who
would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in the Philippines, as a special
agent of the Drug Enforcement Administration, Department of Justice, of the United States, and
gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for
which he was paid. Then their conversation was again focused on politics and business.

"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m.,
he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.1aw phi 1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from
it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told
him that he would be leaving the Philippines very soon and requested him to come out of the house
for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the defendant where he
saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab
with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought
inside the house by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from defendant's attaché
case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's
wife who was at that time at the boutique near his house and likewise arrested Torabian, who was
playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why
he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He
asked for any warrant, but the defendant told him to `shut up.’ He was nevertheless told that he
would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified
in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam,
was beyond the processes of the court. The motion was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise
be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration
of the court order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition
and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.

Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit
his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his
answer, Scalzo denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in
the discharge of his official duties as being merely an agent of the Drug Enforcement Administration
of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity
of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of
Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
Court reversed the decision of the appellate court and remanded the case to the lower court for trial.
The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to
dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of
his official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees
in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether
or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in
G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an
entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject
matter and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or
not public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position,
which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue
of diplomatic immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug
dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S.,
(and) having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of
Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court
of RTC Manila, Branch 19 (the trial court);
 7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of
Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of
this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case
pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports
of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special
agent assigned to the Philippines at all times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel6 to show (a) that the United States
Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3)
to conduct complex criminal investigations involving international criminal conspiracies which affect
the interests of the United States.

The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the establishment
of the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the
16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law.8Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as
being the preeminent embodiment of the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic
mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by
and large, the representation of the interests of the sending state and promoting friendly relations
with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising
the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the
technical and service staff. Only the heads of missions, as well as members of the diplomatic staff,
excluding the members of the administrative, technical and service staff of the mission, are accorded
diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to
the members of diplomatic missions, it does so, nevertheless, with an understanding that the same
be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents"
as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same
privileges from all others. It might bear stressing that even consuls, who represent their respective
states in concerns of commerce and navigation and perform certain administrative and notarial
duties, such as the issuance of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing
their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic
nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the
United States diplomatic mission and was accredited as such by the Philippine Government. An
attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging
to certain ministries or departments of the government, other than the foreign ministry or department,
who are detailed by their respective ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like.
Attaches assist a chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their respective fields in the
host country and submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the diplomatic mission, nor
are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity,
thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting
aside for the moment the issue of authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance
and Motion asking for a first extension of time to file the Answer because the Departments of State
and Justice of the United States of America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by
petitioner cannot be peremptorily dismissed.

"x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x
x x. The public respondent then should have sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have
been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which respondent Court yielded
to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting for, has
formulated its standards for recognition of a diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature."17 Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis.18 Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions
when he committed the acts alleged in the complaint, the present controversy could then be
resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule
of customary international law then closely identified with the personal immunity of a foreign
sovereign from suit20 and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its sovereign
capacity.21 If the acts giving rise to a suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official capacity, the complaint
could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another.22 The implication, in broad terms, is that if the judgment against an
official would require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded.23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible for
their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State department
on the ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long
as it can be established that he is acting within the directives of the sending state. The consent of
the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto
and Shauf both involve officers and personnel of the United States, stationed within Philippine
territory, under the RP-US Military Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United States (for the latter to
send its agents and to conduct surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of
Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after
having ascertained the target, to inform local law enforcers who would then be expected to make the
arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country
to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concu

SECOND DIVISION

ATILANO O. NOLLORA, JR., G.R. No. 191425

Petitioner,
Present:

CARPIO, J., Chairperson,

BRION,
- versus - PERALTA,*
 PEREZ, and

MENDOZA,** JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. September 7, 2011

x--------------------------------------------------x

DECISION

CARPIO, J.:

The Case

G.R. No. 191425 is a petition for review1 assailing the Decision2 promulgated on 30
September 2009 as well as the Resolution3 promulgated on 23 February 2010 by the
Court of Appeals (appellate court) in CA-G.R. CR No. 31538. The appellate court
affirmed the 19 November 2007 Decision4 of Branch 215 of the Regional Trial Court
of Quezon City (trial court) in Criminal Case No. Q-04-129031.

The trial court found accused Atilano O. Nollora, Jr. (Nollora) guilty of bigamy under
Article 349 of the Revised Penal Code and sentenced him to suffer imprisonment. Co-
accused Rowena Geraldino (Geraldino) was acquitted for the prosecutions failure to
prove her guilt beyond reasonable doubt.
 The Facts

The appellate court recited the facts as follows:

On August 24, 2004, Assistant City Prosecutor Raymond Jonathan B. Lledo filed an
Information against Atilano O. Nollora, Jr. (Nollora) and Rowena P. Geraldino (Geraldino) for
the crime of Bigamy. The accusatory portion of the Information reads:

That on or about the 8th day of December 2001 in Quezon City, Philippines, the
above-named accused ATILANO O. NOLLORA, JR., being then legally married
to one JESUSA PINAT NOLLORA, and as said marriage has not been legally
dissolved and still subsisting, did then and there willfully, unlawfully and
feloniously contract a subsequent or second marriage with her [sic] co-accused
ROWENA P. GERALDINO, who knowingly consented and agreed to be married
to her co-accused ATILANO O. NOLLORA, JR. knowing him to be a married
man, to the damage and prejudice of the said offended party JESUSA PINAT
NOLLORA.

Upon his arraignment on April 18, 2005, accused Nollora assisted by counsel, refused to enter
his plea. Hence, a plea of not guilty was entered by the Court for him. Accused Geraldino, on the
other hand, entered a plea of not guilty when arraigned on June 14, 2005. On even date, pre-trial
conference was held and both the prosecution and defense entered the following stipulation of
facts:

1. the validity of the first marriage between Atilano O. Nollora, Jr.

and Jesusa PinatNollora solemnized on April 6, 1999 at Sapang Palay, San Jose
del Monte;

2. that Atilano O. Nollora, Jr. contracted the second marriage with Rowena
P. Geraldino on December 8, 2001 in Quezon City;

3. that in the Counter-Affidavit of Atilano O. Nollora, Jr., he admitted that he

contracted the second marriage to Rowena P. Geraldino;
 4. that Rowena P. Geraldino attached to her Counter-Affidavit the Certificate of
Marriage with Atilano O. Nollora, Jr. dated December 8, 2001;

5. the fact of marriage of Rowena P. Geraldino with Atilano O. Nollora, Jr. as

admitted in her Counter-Affidavit.

The only issue thus proffered by the prosecution for the RTCs resolution is whether or not the
second marriage is bigamous. Afterwards, pre-trial conference was terminated and the case was
set for initial hearing. Thereafter, trial ensued.

Evidence for the Prosecution

As culled from the herein assailed Decision, the respective testimonies of prosecution witnesses
were as follows:

xxx (W)itness Jesusa Pinat Nollora xxx testified that she and
accused Atilano O. Nollora, Jr. met in Saudi Arabia while she was working there
as a Staff Midwife in King Abdulah Naval Base Hospital. Atilano O. Nollora, Jr.
courted her and on April 6, 1999, they got married at the [IE]MELIF Chruch [sic]
in Sapang Palay, San Jose del Monte, Bulacan (Exhibit A). While working in said
hospital, she heard rumors that her husband has another wife and because of
anxiety and emotional stress, she left Saudi Arabia and returned to the Philippines
(TSN, October 4, 2005, page 10). Upon arrival in the Philippines, the private
complainant learned that indeed, AtilanoO. Nollora, Jr. contracted a second
marriage with co-accused Rowena P. Geraldino on December 8, 2001 (Exhibit B)
when she secured a certification as to the civil status of Atilano O. Nollora, Jr.
(Exhibit C) from the National Statistics Office (NSO) sometime in November
2003.

Upon learning this information, the private complainant confronted Rowena

P. Geraldino at the latters workplace in CBW, FTI, Taguig and asked her if she
knew of the first marriage between complainant and Atilano O. Nollora, Jr. to
 which Rowena P. Geraldino allegedly affirmed and despite this knowledge, she
allegedly still married Atilano O. Nollora, Jr. because she loves him so much and
because they were neighbors and childhood friends. Private complainant also
knew that Rowena P. Geraldino knew of her marriage with Atilano O. Nollora,
Jr., because when she (private complainant) was brought by Atilano O. Nollora,
Jr. at the latters residence in Taguig, Metro Manila and introduced her
to Atilano O. Nollora, Jr.s parents, Rowena P. Geraldino was there in the house
together with a friend and she heard everything that they were talking about.

Because of this case, private complainant was not able to return to Saudi Arabia
to work as a Staff Midwife thereby losing income opportunity in the amount
of P34,000.00 a month, more or less. When asked about the moral damages she
suffered, she declared that what happened to her was a tragedy and she had
entertained [thoughts] of committing suicide. She added that because of what
happened to her, her mother died and she almost got raped
when Atilano O. Nollora, Jr. left her alone in their residence in Saudi Arabia.
However, she declared that money is not enough to assuage her sufferings.
Instead, she just asked for the return of her money in the amount
of P50,000.00 (TSN, July 26, 2005, pages 4-14).

Prosecution witness Ruth Santos testified that she knew of the marriage between
the private complainant and Atilano O. Nollora, Jr., because she was one of the
sponsors in said wedding. Sometime in November 2003, she was asked by the
private complainant to accompany the latter to the workplace of Rowena
P. Geraldino in FTI, Taguig, Metro Manila. She declared that the private
complainant and Rowena P. Geraldino had a confrontation and she heard that
Rowena P. Geraldino admitted that she (Rowena) knew of the first marriage
of Atilano O. Nollora, Jr. and the private complainant but she still went on to
marry Atilano O. Nollora, Jr. because she loves him very much (TSN, October 24,
2005, pages 3-5).

Evidence for the Defense

The defenses version of facts, as summarized in the herein assailed Decision, is as follows:
Accused Atilano O. Nollora, Jr. admitted having contracted two (2) marriages, the
first with private complainant Jesusa Pinat and the second with Rowena
P. Geraldino. He, however, claimed that he was a Muslim convert way back on
January 10, 1992, even before he contracted the first marriage with the private
complainant. As a [M]uslim convert, he is allegedly entitled to marry four (4)
wives as allowed under the Muslim or Islam belief.

To prove that he is a Muslim convert even prior to his marriage to the private
complainant, Atilano O. Nollora, Jr. presented a Certificate of Conversion dated
August 2, 2004 issued by one Hadji Abdul Kajar Madueo and approved by
one KhadIbrahim A. Alyamin wherein it is stated that Atilano O. Nollora, Jr.
allegedly converted as a Muslim since January 19, 1992 (Exhibit 2, 3 and 4).
Aside from said certificate, he also presented a Pledge of Conversion dated
January 10, 1992 issued by the same Hadji Abdul Kajar Madueo and approved by
one Khad Ibrahim A. Alyamin (Exhibit 7).

He claimed that the private complaint knew that he was a Muslim convert prior to
their marriage because she [sic] told this fact when he was courting her in Saudi
Arabia and the reason why said private complainant filed the instant case was due
to hatred having learned of his second marriage with Rowena P. Geraldino. She
[sic] further testified that Rowena P. Geraldino was not aware of his first marriage
with the private complainant and he did not tell her this fact because Rowena
P. Geraldino is a Catholic and he does not want to lose her if she learns of his first
marriage.

He explained that in his Marriage Contract with Jesusa Pinat, it is indicated that
he was a Catholic Pentecostal but that he was not aware why it was placed as such
on said contract. In his Marriage Contract with Rowena P. Geraldino, the religion
Catholic was also indicated because he was keeping as a secret his being a
Muslim since the society does not approve of marrying a Muslim. He also
indicated that he was single despite his first marriage to keep said first marriage a
secret (TSN, January 30, 2006, pages 2-13).

Defense witness Hadji Abdul Qasar Madueo testified that he is the founder and
president of Balik Islam Tableegh Foundation of the Philippines and as
such president, he has the power and authority to convert any applicant to the
Muslim religion. He alleged that sometime in 1992, he met
accused Atilano O. Nollora, Jr. in Mabini (Manila) who was then going
abroad. Atilano O. Nollora, Jr. applied to become a Muslim (Exhibit 14) and after
receiving the application, said accused was indoctrinated regarding his obligations
as a Muslim. On January 10, 1992, Atilano O. Nollora, Jr. embraced the Muslim
faith. He was then directed to report every Sunday to monitor his development.

In the year 2004, Atilano O. Nollora, Jr. visited him and asked for a certification
because of the filing of the instant case. On October 2, 2004, he issued a
Certificate of Conversion wherein it is stated that Atilano O. Nollora, Jr. is a
Muslim convert since January 10, 1992. Apart from the above-mentioned
document, their Imam also issued a Pledge of Conversion (Exhibit 7). He declared
that a Muslim convert could marry more than one according to the Holy Koran.
However, before marrying his second, third and fourth wives, it is required that
the consent of the first Muslim wife be secured. Thus, if the first wife is not a
Muslim, there is no necessity to secure her consent (TSN, October 9, 2006, pages
2-12).

During his cross-examinations, he declared that if a Muslim convert gets married

not in accordance with the Muslim faith, the same is contrary to the teachings of
the Muslim faith. A Muslim also can marry up to four times but he should be able
to treat them equally. He claimed that he was not aware of the first marriage but
was aware of the second. Since his second marriage with Rowena
P. Geraldino was not in accordance with the Muslim faith, he
advised Atilano O. Nollora, Jr. to re-marry Rowena P. Geraldino in accordance
with Muslim marriage celebration, otherwise, he will not be considered as a true
Muslim (TSN, June 25, 2007, pages 3-7).

Accused Rowena P. Geraldino alleged that she was only a victim in this incident
of bigamous marriage. She claimed that she does not know the private
complainant Jesusa Pinat Nollora and only came to know her when this case was
filed. She insists that she is the one lawfully married to Atilano O. Nollora, Jr.,
having been married to the latter since December 8, 2001. Upon learning
that Atilano O. Nollora, Jr. contracted a first marriage with the private
 complainant, she confronted the former who admitted the said marriage. Prior to
their marriage, she asked Atilano O. Nollora, Jr. if he was single and the latter
responded that he was single. She also knew that her husband was a Catholic prior
to their marriage but after she learned of the first marriage of her husband, she
learned that he is a Muslim convert. She also claimed that after learning that her
husband was a Muslim convert, she and AtilanoO. Nollora, Jr., also got married in
accordance with the Muslim rites. She also belied the allegations of the private
complainant that she was sought by the private complainant and that they had a
confrontation where she admitted that she knew that Atilano O. Nollora, Jr. was
married to the private complainant and despite this knowledge, she went on to
marry him because she loved him very much. She insisted that she only came to
know the private complainant when she (private complainant) filed this case
(TSN, August 14, 2007, pages 2-8).5

The Trial Courts Ruling

In its Decision6 dated 19 November 2007, the trial court convicted Nollora and
acquitted Geraldino.

The trial court stated that there are only two exceptions to prosecution for bigamy:
Article 417of the Family Code, or Executive Order No. 209, and Article 1808 of the
Code of Muslim Personal Laws of the Philippines, or Presidential Decree No. 1083.
The trial court also cited Article 27 of the Code of Muslim Personal Laws of the
Philippines, which provides the qualifications for allowing Muslim men to have more
than one wife: [N]o Muslim male can have more than one wife unless he can deal
with them in equal companionship and just treatment as enjoined by Islamic Law and
only in exceptional cases.

In convicting Nollora, the trial courts Decision further stated thus:

The principle in Islam is that monogamy is the general rule and polygamy is allowed only to
meet urgent needs. Only with the permission of the court can a Muslim be permitted to have a
second wife subject to certain requirements. This is because having plurality of wives is merely
tolerated, not encouraged, under certain circumstances (Muslim Law on Personal Status in the
Philippines by Amer M. Bara-acal and Abdulmajid J. Astir, 1998 First Edition, Pages 64-65).
Arbitration is necessary. Any Muslim husband desiring to contract subsequent marriages, before
so doing, shall notify the Sharia Circuit Court of the place where his family resides. The clerk of
court shall serve a copy thereof to the wife or wives. Should any of them objects [sic]; an Agama
Arbitration Council shall be constituted. If said council fails to secure the wifes consent to the
proposed marriage, the Court shall, subject to Article 27, decide whether on [sic] not to sustain
her objection (Art. 162, Muslim Personal Laws of the Philippines).

Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena
P. Geraldino,did not comply with the above-mentioned provision of the law. In fact, he did not
even declare that he was a Muslim convert in both marriages, indicating his criminal intent. In
his converting to the Muslim faith, said accused entertained the mistaken belief that he can just
marry anybody again after marrying the private complainant. What is clear, therefore, is [that] a
Muslim is not given an unbridled right to just marry anybody the second, third or fourth time.
There are requirements that the Sharia law imposes, that is, he should have notified
the Sharia Court where his family resides so that copy of said notice should be furnished to the
first wife. The argument that notice to the first wife is not required since she is not a Muslim is of
no moment. This obligation to notify the said court rests upon accused Atilano Nollora, Jr. It is
not for him to interpret the Sharia law. It is the Sharia Court that has this authority.

In an apparent attempt to escape criminal liability, the accused recelebrated their marriage in
accordance with the Muslim rites. However, this can no longer cure the criminal liability that has
already been violated.

The Court, however, finds criminal liability on the person of accused Atilano Nollora, Jr., only.
There is no sufficient evidence that would pin accused Rowena P. Geraldino down. The evidence
presented by the prosecution against her is the allegation that she knew of the first marriage
between private complainant and Atilano Nollora, Jr., is insufficient[,] being open to several
interpretations. Private complainant alleged that when she was brought by AtilanoNollora, Jr., to
the latters house in Taguig, Metro Manila, Rowena P. Geraldino was there standing near the door
and heard their conversation. From this incident, private complainant concluded that said
Rowena P. Geraldino was aware that she and Atilano Nollora, Jr., were married. This conclusion
is obviously misplaced since it could not be reasonably presumed that Rowena
P. Geraldino understands what was going on between her and Atilano Nollora, Jr. It is axiomatic
that (E)very circumstance favoring accuseds innocence must be taken into account, proof against
him must survive the test of reason and the strongest suspicion must not be permitted to sway
judgment (People vs. Austria, 195 SCRA 700). This Court, therefore, has to acquit Rowena
P. Geraldino for failure of the prosecution to prove her guilt beyond reasonable doubt.

WHEREFORE, premises considered, judgment is hereby rendered, as follows:

a) Finding accused ATILANO O. NOLLORA, JR. guilty beyond reasonable doubt of the crime
of Bigamy punishable under Article 349 of the Revised Penal Code. This court hereby renders
judgment imposing upon him a prison term of two (2) years, four (4) months and one (1) day
of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and one (1)
day of prision mayor, as maximum, plus accessory penalties provided by law.

b) Acquitting accused ROWENA P. GERALDINO of the crime of Bigamy for failure of the
prosecution to prove her guilt beyond reasonable doubt.

Costs against accused Atilano O. Nollora, Jr.

SO ORDERED.9

Nollora filed a notice of appeal and moved for the allowance of his temporary liberty
under the same bail bond pending appeal. The trial court granted Nolloras motion.

Nollora filed a brief with the appellate court and assigned only one error of the trial
court:

The trial court gravely erred in finding the accused-appellant guilty of the crime charged despite
the prosecutions failure to establish his guilt beyond reasonable doubt.10
 The Appellate Courts Ruling

On 30 September 2009, the appellate court dismissed Nolloras appeal and affirmed
the trial courts decision.11

The appellate court rejected Nolloras defense that his second marriage
to Geraldino was in lawful exercise of his Islamic religion and was allowed by the
Quran. The appellate court denied Nolloras invocation of his religious beliefs and
practices to the prejudice of the non-Muslim women who married him pursuant to
Philippine civil laws. Nolloras two marriages were not conducted in accordance with
the Code of Muslim Personal Laws, hence the Family Code of the Philippines should
apply. Nolloras claim of religious freedom will not immobilize the State and render it
impotent in protecting the general welfare.

In a Resolution12 dated 23 February 2010, the appellate court denied Nolloras motion
for reconsideration. The allegations in the motion for reconsideration were a mere
rehash of Nolloras earlier arguments, and there was no reason for the appellate court
to modify its 30 September 2009 Decision.

Nollora filed the present petition for review before this Court on 6 April 2010.

The Issue

The issue in this case is whether Nollora is guilty beyond reasonable doubt of the
crime of bigamy.
 The Courts Ruling

Nolloras petition has no merit. We affirm the rulings of the appellate court and of the
trial court.

Elements of Bigamy

Article 349 of the Revised Penal Code provides:

Art. 349. Bigamy. ‒ The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.

The elements of the crime of bigamy are:

1. That the offender has been legally married.

2. That the marriage has not been legally dissolved or, in case his or her spouse is absent,
the absent spouse could not yet be presumed dead according to the Civil Code.

3. That he contracts a second or subsequent marriage.

4. That the second or subsequent marriage has all the essential requisites for validity.13

The circumstances in the present case satisfy all the elements of bigamy.
(1) Nollora is legally married to Pinat;14 (2) Nollora and Pinats marriage has not been
legally dissolved prior to the date of the second marriage; (3) Nollora admitted the
existence of his second marriage to Geraldino;15 and
(4) Nollora and Geraldinos marriage has all the essential requisites for validity except
for the lack of capacity of Nollora due to his prior marriage.16

The marriage certificate17 of Nollora and Pinats marriage states

that Nollora and Pinat were married at Sapang Palay IEMELIF Church, Sapang Palay,
San Jose del Monte, Bulacan on 6 April 1999. Rev. Jonathan De Mesa, Minister of the
IEMELIF Church officiated the ceremony. The marriage
certificate18 of Nollora and Geraldinos marriage states that Nolloraand Geraldino were
married at Maxs Restaurant, Quezon Avenue, Quezon City, Metro Manila on 8
December 2001. Rev. Honorato D. Santos officiated the ceremony.

A certification dated 4 November 2003 from the Office of the Civil Registrar General
reads:

We certify that ATILANO JR O. NOLLORA who is alleged to have been born on February 22,
1968 from ATILANO M. NOLLORA SR and FLAVIANA OCLARIT, appears in our National
Indices of Marriage for Groom for the years 1973 to 2002 with the following information:

Date of Marriage Place of Marriage

a) April 06, 1999 b) SAN JOSE DEL MONTE,
BULACAN
a) December 08, 2001 b) QUEZON CITY, METRO
MANILA (2nd District)19

Before the trial and appellate courts, Nollora put up his Muslim religion as his sole
defense. He alleged that his religion allows him to marry more than once.
Granting arguendo that Nollora is indeed of Muslim faith at the time of celebration of
both marriages,20 Nolloracannot deny that both marriage ceremonies were not
conducted in accordance with the Code of Muslim Personal Laws, or Presidential
Decree No. 1083. The applicable Articles in the Code of Muslim Personal Laws read:
Art. 14. Nature. - Marriage is not only a civil contract but a civil institution. Its nature,
consequences and incidents are governed by this Code and the Sharia and not subject to
stipulation, except that the marriage settlements to a certain extent fix the property relations of
the spouses.

Art. 15. Essential Requisites. - No marriage contract shall be perfected unless the following
essential requisites are complied with:

(a) Legal capacity of the contracting parties;

(b) Mutual consent of the parties freely given;

(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons after
the proper guardian in marriage (wali) has given his consent; and

(d) Stipulation of the customary dower (mahr) duly witnessed by two competent persons.

Art. 16. Capacity to contract marriage. - (1) Any Muslim male at least fifteen years of age and
any Muslim female of the age of puberty or upwards and not suffering from any impediment
under the provisions of this Code may contract marriage. A female is presumed to have attained
puberty upon reaching the age of fifteen.

x x x.

Art. 17. Marriage Ceremony. - No particular form of marriage ceremony is required but
the ijab and the qabul in marriage shall be declared publicly in the presence of the person
solemnizing the marriage and the two competent witnesses. The declaration shall be set forth in
an instrument in triplicate, signed or marked by the contracting parties and said witnesses, and
attested by the person solemnizing the marriage. One copy shall be given to the contracting
parties and another sent to the Circuit Registrar by the solemnizing officer who shall keep the
third.

Art. 18. Authority to solemnize marriage. - Marriage maybe solemnized:

(a) By the proper wali by the woman to be wedded;

(b) Upon the authority of the proper wali, by any person who is competent under Muslim law to
solemnize marriage; or
(c) By the judge of the Sharia District Court or Sharia Circuit Court or any person designated by
the judge, should the proper wali refuse without justifiable reason, to authorize
the solemnization.

Art. 19. Place of solemnization. - Marriage shall be solemnized publicly in any mosque, office of
the Sharia judge, office of the Circuit Registrar, residence of the bride or her wali, or at any other
suitable place agreed upon by the parties.

Art. 20. Specification of dower. - The amount or value of dower may be fixed by the contracting
parties (mahr-musamma) before, during or after the celebration of marriage. If the amount or the
value thereof has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of the wife,
be determined by the court according to the social standing of the parties.

Indeed, Article 13(2) of the Code of Muslim Personal Laws states that [i]n case of a
marriage between a Muslim and a non-Muslim, solemnized not in accordance
with Muslim law or this Code, the [Family Code of the Philippines, or Executive
Order No. 209, in lieu of the Civil Code of the Philippines] shall
apply. Nolloras religious affiliation is not an issue here. Neither is the claim
that Nolloras marriages were solemnized according to Muslim law. Thus, regardless
of his professed religion, Nollora cannot claim exemption from liability for the crime
of bigamy.21

Nollora asserted in his marriage certificate with Geraldino that his civil status is
single. Moreover, both of Nolloras marriage contracts do not state that he is a Muslim.
Although the truth or falsehood of the declaration of ones religion in the marriage
certificate is not an essential requirement for marriage, such omissions are sufficient
proofs of Nolloras liability for bigamy. Nolloras false declaration about his civil status
is thus further compounded by these omissions.

[ATTY. CALDINO:]

Q: In your marriage contract, Mr. Witness, with Jesusa Pinat, you indicated here as your religion,
Catholic Pentecostal, and you were saying that since January 10, 1992, you are already a
[M]uslim convert. . . you said, Mr. Witness, that you are already a [M]uslimconvert since
January 10, 1992. However, in your marriage contract with Jesusa Pinat, there is no indication
here that you have indicated your religion. Will you please go over your marriage contract?

[NOLLORA:]

A: When we got married, they just placed there Catholic but I didnt know why they did not place
any Catholic there.

xxx

Q: Now, Mr. Witness, I would like to call your attention with respect to your marriage
contract with your co-accused in this case, Rowena Geraldino, x x x will you please tell us,
Mr. Witness, considering that you said that you are already a [M]uslim convert on January
10, 1992, why in the marriage contract with Rowena Geraldino, you indicated there your
religion as Catholic, Mr. Witness?

A: Since I was a former Catholic and since I was then keeping, I was keeping it as a secret
my being my Balik-Islam, thats why I placed there Catholic since I know that the society
doesnt approve a Catholic to marry another, thats why I placed there Catholic as my
religion, sir.

Q: How about under the column, civil status, why did you indicate there that youre single,
Mr. Witness?

A: I also kept it as a secret that I was married, earlier married.22 (Emphasis supplied)

xxx

[PROSECUTOR TAYLOR:]

Q: Would you die for your new religion, Mr. Nollora?

A: Yes, maam.

Q: If you would die for your new religion, why did you allow that your faith be indicated as
Catholic when in fact you were already as you alleged [M]uslim to be put in your marriage
contract?

xxx

[A:] I dont think there is anything wrong with it, I just signed it so we can get married under the
Catholic rights [sic] because after that we even got married under the [M]uslim rights [sic], your
Honor.

xxx

Q: Under your Muslim faith, if you marry a second wife, are you required under your faith to
secure the permission of your first wife to get married?

A: Yes, maam.

Q: Did you secure that permission from your first wife, Jesusa Nollora?

A: I was not able to ask any permission from her because she was very mad at me, at the start,
she was always very mad, maam.23
In his petition before this Court, Nollora casts doubt on the validity of his marriage
to Geraldino. Nollora may not impugn his marriage to Geraldino in order to extricate
himself from criminal liability; otherwise, we would be opening the doors to allowing
the solemnization of multiple flawed marriage ceremonies. As we stated in Tenebro v.
Court of Appeals:24

There is therefore a recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these legal consequences is
incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on
bigamy completely nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the consequences of contracting multiple
marriages, while beguiling throngs of hapless women with the promise of futurity and
commitment.

WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in

CA-G.R. CR No. 31538 promulgated on 30 September 2009 and the Resolution
promulgated on 23 February 2010 are AFFIRMED. Petitioner Atilano O. Nollora, Jr.
is guilty beyond reasonable doubt of Bigamy in Criminal Case No. Q-04-129031 and
is sentenced to suffer the penalty of imprisonment with a term of two years, four
months and one day of prisioncorreccional as minimum to eight years and one day
of prision mayor as maximum of his indeterminate sentence, as well as the accessory
penalties provided by law.

Costs against petitioner Atilano O. Nollora, Jr.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice
WE CONCUR:

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE C. MENDOZA

Associate Justice
 ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson
EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13
The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:
 By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âw phi 1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV
 Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:
 "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.
 x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.
 Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.
 The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.
 Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
 institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.
 Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?
 Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
 Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2 PDI, October 6, 2000, pp. A1 and A18.

3 Ibid., October 12, 2000, pp. A1 and A17.

4 Ibid., October 14, 2000, p. A1.

5 Ibid., October 18, 2000, p. A1.

6 Ibid., October 13, 2000, pp. A1 and A21.

7 Ibid., October 26, 2000, p. A1.

8 Ibid., November 2, 2000, p. A1.

9 Ibid., November 3, 2000, p. A1.

10 Ibid., November 4, 2000, p. A1.

11The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.

12 Ibid., November 14, 2000, p. A1.

13 Ibid., November 21, 2000, p. A1.

14 Ibid., December 8, 2000, p. A1.

15 Ibid., December 23, 2000, pp. A1 and A19.

16 Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18 Philippine Star, January 17, 2001, p. 1.

19 Ibid., January 18, 2001, p. 4.

20 Ibid., p. 1.

21 Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23 Philippine Star, January 20, 2001, p. 4.

24 PDI, February 4, 2001, p. A16.

25 Philippine Star, January 20, 2001, pp. 1 and 11.

26 Ibid., January 20, 2001, p. 3.

27 PDI, February 5, 2001, pp. A1 and A6.

28 Philippine Star, January 21, 2001, p. 1.

29 PDI, February 6, 2001, p. A12.

30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32 Ibid.

33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35 Philippine Star, January 24, 2001, p. 1.

36 PDI, January 25, 2001, p. 1.

37 Ibid., p. 2.

38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39 Annex D, id; ibid., p. 292.

40 PDI, January 27, 2001, p. 1.

41 PDI, February 13, 2001, p. A2.

42 Philippine Star, February 13, 2001, p. A2.

43 Annex E, id.; ibid., p. 295.

44 PDI, February 8, 2001, pp. A1 & A19.

45 Annex F, id.; ibid., p. 297.

46 PDI, February 10, 2001, p. A2.

47 Annex G, id.; ibid., p. 299.

48 PDI, February 8, 2001, p. A19.

49 Philippine Star, February 3, 2001, p. 4.

50"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,

2001, p. 14.

51See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53 Rollo, G.R. No. 146738, p. 134.

54Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58 103 Phil 1051, 1068 (1957).

59 Section 1, Article VIII, 1987 Constitution.

60Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61 Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63 Proclamation No. 3 (1986).

64 It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65
See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67 See section 8, Article IV.

68 See section 9, Article IV.

69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"
71 307 US 496 (1939).

72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73 260 SCRA 798 (1996).

74 Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75 Infra at 26.

76 Infra at 41.

77 1 Cranch (5 US) 137, 2 L ed 60 (1803).

78 Gonzales v. Hernandez, 2 SCRA 228 (1961).

79 See its February 4, 5, and 6, 2001 issues.

80 PDI, February 4, 2001, p. A1.

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Ibid.

86 PDI, February 5, 2001, p. A1.

87 Ibid., p. A-1.

88 Ibid.

89 PDI, February 5, 2001, P. A6.

90 PDI, February 6, 2001, p. A1.

In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
91

Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.
93 Id., May 9, 1959, p. 1988

94Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97 11th Congress, 3rd Session (2001).

98 11th Congress, 3rd Session (2001).

99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.
100 11th Congress, 3rd Session (2001).

101 11th Congress, 3rd Session (2001).

102 103 Phil 1051, 1067 (1957).

103 Baker vs. Carr, supra at 686 headnote 29.

104 16 Phil 534 (1910).

105The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106 62 Phil. L.J. 113 (1987).

107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109 Supra at 47.

110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111 145 SCRA 160 (1986).

112 128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117 520 U.S. 681 (1997).

118 See section 1, Art. XI of the 1987 Constitution.

119 See section 27, Art. II of the 1987 Constitution.

120 See, section 1, Art. XI of the 1987 Constitution.

121 See section 15, Art. XI of the 1987 Constitution.

122 See section 4, Art. XI of the 1987 Constitution.

123 See section 13 (1), Art. XI of the 1987 Constitution.

124 See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126 Id., p. 1417.

See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128 249 SCRA 54 (1955)

129 287 SCRA 581 at pp. 596-597 (1998)

130 247 SCRA 652 (1995)

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
131

Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134 See section 4, Rule 112.

135 Estes v. Texas, 381 US 532, 540 (1965).

 CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.
"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.
More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection
on our part. In this kind of arena, let us be assumed that we are not overcome by senseless
adventurism and opportunism. The country must not grow oblivious to the innate perils of people
power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that
which we may hold dear.

1 Section 8, Article VII, 1987 Constitution

2 Section 11, 1st paragraph, Article VII, 1987 Constitution

3 Ibid., 2nd paragraph

4 Ortiz vs. Comelec, 162 SCRA 812

5Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January
1998

6 Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7 "Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose
a situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment
to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9 Ibid.

10 Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE

11

QUARTERLY

Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
12

456 (1973)
 Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
13

Law Journal, 390-391 (1971)

14 16 American Jurisprudence 2d.

15 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17 Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
18

73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.
In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito
Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is
merely acting President on account o the former's temporary disability. On the other hand, in G.R.
Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds, and graft and corruption
against petitioner Estrada on the theory that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has
been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the
events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In
support of this contention, respondent cites the following statements of this Court concerning the
Aquino government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de facto government but is in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.2

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the state" and from
there is derived" the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."3
But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the
subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm
the existence and authority of such government under which it is exercising judicial power.4 As
Melville Weston long ago put it, "the men who were judges under the old regime and the men who
are called to be judges under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the
Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong
forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in
the day to deny the force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is
precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the
Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by succession due to resignation or permanent disability of
petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest
for power Macapagal-Arroyo's government is the successful one and is now accepted by the people
and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February
1986. There was no overthrow of the existing legal order and its replacement by a new one, no
nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that
case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate
gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session
and, followed by six senators, walked out of the session hall. The remaining senators then declared
the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been validly elected acting president
of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the political
nature of the controversy, involving as it did an internal affair of a coequal branch of the government,
in the end this Court decided to intervene because of the national crisis which developed as a result
of the unresolved question of presidency of the Senate. The situation justifying judicial intervention
was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.
. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but
to meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls
for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-
Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the
tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in
tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R.
No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office
of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these
cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of
law. In election cases, people accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as
far as the political question argument of respondents is anchored on the difficulty or impossibility of
devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and
need not be recounted in great detail here. They began in October 2000 when allegations of wrong
doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made
against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000,
petitioner was impeached by the House of Representatives and, on December 7, impeachment
proceedings were begun in the Senate during which more serious allegations of graft and corruption
against petitioner were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out
and Senate President Aquilino Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:
 1. The decision immediately sent hundreds of Filipinos out into the streets, triggering
rallies that swelled into a massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos. Citing that mandate
and exploiting the letter of the Constitution, which stipulates that a written resignation
be presented, he refused to step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
2. When an entire night passed without Estrada's resignation, tens of thousands of
frustrated protesters marched on Malacañang to demand that the president leave
office. An air force fighter jet and four military helicopters buzzed the palace to
remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies – and the commentators
became lost in reveries about People Power revisited – behind-the-scenes
negotiations had been going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the President. Chief of Staff Reyes
and Defense Secretary Mercado had made their fateful call to Estrada after luncheon
attended by all the top commanders. The officers agreed that renouncing Estrada
was the best course, in part because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there loomed the possibility of
factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration that the presidency was
effectively vacant to persuade Estrada to pack up and move out to his family home in
Manila – still refusing to sign a letter of resignation and insisting that he was the legal
president [FAR EASTERN ECONOMIC REVIEW, "More Power to the
Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he was unable to perform
the duties of his Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who
under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were
all televised and heard by millions of people throughout the length and breadth of this archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced its loss of trust and confidence
in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces and the national police, he
found Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers
and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's
presidency:
The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-
attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a
corner – he is also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M.
of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled
but only temporarily unable to discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.

From this judgment that petitioner became permanently disabled because he had lost the public's
trust, I except extravagant claims of the right of the people to change their government. While Art. II,
§1 of the Constitution says that "sovereignty resides in the people and all government authority
emanates from them," it also says that "the Philippines is a democratic and republican state." This
means that ours is a representative democracy — as distinguished from a direct democracy — in
which the sovereign will of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right
to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious
reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness — That to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to
them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are
sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a
Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis,
nay a vacuum, in the executive leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.
But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own
Executive Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that there were then two
governments — the de facto government established by Japan as belligerent occupant, of which
Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a
recognized principle of international law.18 But today we have only one government, and it is the
one set up in the 1987 Constitution. Hence, there can only be one President.

Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is required
by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this
jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner
as a result of publicity. There has been no proof of this, and so I think this claim should simply be
dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

THIRD DIVISION

G.R. No. 190912, January 12, 2015

GARY FANTASTICO AND ROLANDO VILLANUEVA, Petitioners, v. ELPIDIO MALICSE, SR. AND
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review on Certiorari1 under Rule 45 of the 1997 Rules of
Civil Procedure, dated January 20, 2010 , of petitioners Gary Fantastico and Rolando Villanueva assailing the
Decision2 dated August 31, 2007 and Resolution3 dated January 7, 2010 of the Court of Appeals (CA) in CA-
G. R. CR. No. 31719, affirming the Decision4 dated March 31, 2008 of the Regional Trial Court, Branch 11,
Manila, in Criminal Case No. 93-127049, finding petitioners guilty of attempted murder.
The following are the antecedents:

On the afternoon of June 27, 1993, Elpidio Malicse, Sr. (Elpidio) was outside the house of his sister Isabelita
Iguiron (Isabelita) in Pandacan, Manila when all of a sudden, he heard Isabelita's son, Winston, throwing
invectives at him. Thus, Elpidio confronted Isabelita but she also cursed him, which prompted the former to
slap the latter. On that occasion, Elpidio was under the influence of alcohol.

The Barangay Chairman heard what transpired and went to the place where the commotion was taking place
in order to pacify those who were involved. Elpidio was eventually persuaded to go home where he drank
some coffee. Thereafter, Elpidio went back to the house of Isabelita to offer reconciliation. On his way there,
he passed by the house of Kagawad Andy Antonio and requested the latter to accompany him, but was
instead told to go back home, leaving Elpidio to proceed alone.

Upon reaching Isabelita's house, Elpidio saw the former's son, Titus Iguiron (Titus) and her son-in-law Gary
Fantastico (Gary) and asked the two where he can find their parents. Titus and Gary responded, “putang ina
mo, and kulit mo, lumayas ka, punyeta ka.”

In his anger with the response of Titus and Gary, Elpidio kicked the door open and saw Isabelita's elder son,
Salvador Iguiron (Salvador) behind the door holding a rattan stick or arnis. Salvador hit Elpidio on the right
side of his head that forced the latter to bow his head but Salvador delivered a second blow that hit Elpidio
on the right eyebrow. Salvador attempted to hit Elpidio for the third time but the latter got hold of the rattan
stick and the two wrestled on the floor and grappled for the possession of the same rattan stick. Then Titus
ran towards the two and sprayed something on Elpidio's face. Not being able to free himself from the
clutches of Salvador and to extricate himself, Elpidio bit Salvador's head.

Gary hit Elpidio on the right side of his head with a tomahawk axe when the latter was about to go out of
the house. Elpidio tried to defend himself but was unable to take the tomahawk axe from Gary. Elpidio
walked away from Titus but Gary, still armed with the tomahawk axe and Salvador, with his arnis, including
Titus, chased him.

Roland (Rolly) Villanueva, without any warning, hit Elpidio on the back of his head with a lead pipe which
caused the latter to fall on the ground. Elpidio begged his assailants to stop, but to no avail. Salvador hit
him countless times on his thighs, legs and knees using the rattan stick. While he was simultaneously being
beaten up by Salvador, Titus, Gary, Rolly, Nestor, Eugene and Tommy, he tried to cover his face with his
arm. Gary hit him with the tomahawk axe on his right leg, between the knees and the ankle of his leg, which
caused the fracture on his legs and knees. Rolly hit Elpidio's head with a lead pipe, while Tommy hit him
with a piece of wood on the back of his shoulder.

Thereafter, a certain “Mang Gil” tried to break them off but Titus and Gary shouted at him: “Huwag
makialam, away ng mag-anak ito” and the two continued to maul Elpidio. The people who witnessed the
incident shouted “maawa na kayo” but they only stopped battering him when a bystander fainted because of
the incident. Elpidio then pretended to be dead. It was then that concerned neighbors approached him and
rushed him to the emergency room of the Philippine General Hospital (PGH).

Thus, a case for Attempted Murder under Article 248, in relation to Article 6 of the Revised Penal Code, was
filed against Salvador Iguiron, Titus Malicse Iguiron, Saligan Malicse Iguiron, Tommy Ballesteros, Nestor
Ballesteros, Eugene Surigao and petitioners Gary Fantastico and Rolando Villanueva. The Information
reads:ChanRobles Vi rtua lawlib rary

That on or about June 27, 1993, in the City of Manila, Philippines, the said accused conspiring and
confederating together and helping one another, did then and there willfully, unlawfully and feloniously, with
intent to kill and with treachery and taking advantage of superior strength, commence the commission of
the crime of murder directly by overt acts, to wit: by then and there hitting the head of Elpidio Malicse, Sr. y
de Leon with a piece of rattan, axe, pipe and a piece of wood and mauling him, but the said accused did not
perform all the acts of execution which should have produced the crime of murder, as a consequence, by
reason of causes other than their own spontaneous desistance, that is, the injuries inflicted upon Elpidio
Malicse, Sr. y de Leon are not necessarily mortal.
They all pleaded “not guilty.” The defense, during trial, presented the following version of the events that
transpired:

Around 4:30 p.m. of June 27, 1993, Salvador was at the second floor of their house when he heard his tenth
son Winston crying while the latter was being castigated by Elpidio. He went down and told Elpidio to come
back the next day to settle. His wife Isabelita called the Barangay Chairman two blocks
away. Barangay Chairman Joseph Ramos and Elpidio's wife and daughter went to the house and Elpidio was
given warm water, but he showered his daughter and Winston with it. Elpidio was brought to his house and
the former told the Barangay Chairman that it was a family problem. Elpidio went back to the house of
Salvador where Titus was sitting on the sofa. Elpidio asked Titus to open the door until the former kicked the
door open. Titus escaped through the open door and Salvador went out of the house because another child
was on the roof, afraid that the said child might fall. Thereafter, Elpidio went to the street.

According to petitioner Gary Fantastico, he was inside their house with his wife and Titus when the incident
occurred. He and his wife ran upstairs, while Titus went out when Elpidio hit the door. Elpidio had a
reputation for hurting people when drunk and Gary learned that Elpidio was brought to the hospital because
he was mauled by the people.

During trial, one of the accused, Salvador Iguiron died. Eventually, the trial court, in a Decision dated March
31, 2008, acquitted Titus Iguiron, Saligan Iguiron and Tommy Ballesteros but found Gary Fantastico and
Rolando Villanueva guilty beyond reasonable doubt for Attempted Murder. The dispositive portion of the said
decision reads:ChanRob les Virtualawl ibra ry

WHEREFORE, the foregoing premises considered, the Court finds Gary Fantastico and Rolando Villanueva
GUILTY of the crime of attempted murder and sentences them to an indeterminate penalty of imprisonment
of eight (8) years and one (1) day as minimum, to ten (10) years as maximum. They are also ordered to
pay the actual damages of P17,300.00 and moral damages of P10,000.00.

Accused Titus Iguiron, Saligan Iguiron and Tommy Ballesteros ACQUITTED.

SO ORDERED.
After their motion for reconsideration was denied, petitioners appealed the case to the CA, but the latter
court affirmed the decision of the RTC and disposed the case as follows: ChanRoblesVirt ualawli bra ry

WHEREFORE, finding no reversible error in the decision appealed from, we hereby AFFIRM the same and
DISMISS the instant appeal.

SO ORDERED.
A motion for reconsideration was filed, but it was denied by the same court.

Hence, the present petition.

Petitioners stated the following arguments: ChanRoblesVirt ualawli bra ry

THE CONCLUSIONS DRAWN BY THE COURT OF APPEALS AND THE TRIAL COURT FROM THE FACTS OF THE
CASE ARE INCORRECT.

THE INFORMATION ITSELF IN THIS CASE DOES NOT ALLEGE ALL THE ELEMENTS AND THE NECESSARY
INGREDIENTS OF THE SPECIFIC CRIME OF ATTEMPTED MURDER.

NOT ALL OF THE ELEMENTS OF ATTEMPTED MURDER ARE PRESENT IN THIS CASE.

THERE IS NO TREACHERY OR ANY OTHER QUALIFYING CIRCUMSTANCE TO SPEAK OF IN THIS CASE.

THE LOWER COURT AND THE COURT OF APPEALS FAILED TO CONSIDER THE PRESENCE OF MITIGATING
CIRCUMSTANCES.

THERE ARE MANIFEST MISTAKES IN THE FINDINGS OF FACTS BY THE COURT OF APPEALS AND THE TRIAL
COURT.

THE CONVICTION OF THE PETITIONERS WAS BASED ON THE WEAKNESS OF THE DEFENSE EVIDENCE, NOT
ON THE STRENGTH OF THE PROSECUTION EVIDENCE.

THE TESTIMONY OF THE RESPONDENT THAT IT WAS THE PETITIONERS WHO ATTACKED HIM IS INDEED
UNCORROBORATED AND THUS SELF-SERVING.

CLEARLY, THERE ARE SO MUCH REVERSIBLE ERRORS IN THE DECISION OF THE COURT OF APPEALS AND
THE LOWER COURT THAT INJURIOUSLY AFFECTED THE SUBSTANTIAL RIGHTS OF THE PETITIONERS AND
THESE SHOULD BE CORRECTED BY THIS HONORABLE COURT.
At the outset, it bears stressing that under the Rules of Court, an appeal by certiorari to this Court should
only raise questions of law distinctly set forth in the petition.5 chanRoble svirtual Lawli bra ry

In the present case, the issues and arguments presented by the petitioners involve questions of facts.
Therefore, the present petition is at once dismissible for its failure to comply with the requirement of Rule 45
of the Rules of Court, that the petition should only raise questions of law.

The distinction between a “question of law” and a “question of fact” is settled. There is a “question of law”
when the doubt or difference arises as to what the law is on a certain state of facts, and which does not call
for an examination of the probative value of the evidence presented by the parties-litigants. On the other
hand, there is a “question of fact” when the doubt or controversy arises as to the truth or falsity of the
alleged facts. Simply put, when there is no dispute as to fact, the question of whether or not the conclusion
drawn therefrom is correct, is a question of law.6 chanRoblesvirtual Lawlib ra ry

At any rate, the arguments of herein petitioners deserve scant consideration.

It is the contention of the petitioners that the Information filed against them was defective because it did
not state all the elements of the crime charged. However, a close reading of the Information would show the
contrary. The Information partly reads: ChanRobles Vi rtua lawlib rary

x x x but the said accused did not perform all the acts of the execution which should have produced the
crime of murder, as a consequence, by reason of causes other than their own spontaneous desistance, that
is, the injuries inflicted upon Elpidio Malicse, Sr. y de Leon are not necessarily mortal.
From the above-quoted portion of the Information, it is clear that all the elements of the crime of attempted
murder has been included.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: ChanRoblesVi rtua lawlib rary

There is an attempt when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance.7 chanRoblesvirt ual Lawlib rary

The essential elements of an attempted felony are as follows:

The offender commences the commission of the felony directly by overt acts;

He does not perform all the acts of execution which should produce the felony;

The offender's act be not stopped by his own spontaneous desistance;

The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance.8
The first requisite of an attempted felony consists of two (2) elements, namely: ChanRobles Vi rt ualawlib ra ry

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.9
The Court in People v. Lizada10 elaborated on the concept of an overt or external act, thus: ChanRoblesVi rtua lawlib rary

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d'etre
for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act or before any fragment
of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act
should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and necessary relation to the offense.11
Petitioners question the inclusion of the phrase “not necessarily mortal” in the allegations in the Information.
According to them, the inclusion of that phrase means that there is an absence of an intent to kill on their
part. Intent to kill is a state of mind that the courts can discern only through external manifestations, i.e.,
acts and conduct of the accused at the time of the assault and immediately thereafter. In Rivera v.
People,12 this Court considered the following factors to determine the presence of an intent to kill: (1) the
means used by the malefactors; (2) the nature, location, and number of wounds sustained by the victim;
(3) the conduct of the malefactors before, at the time, or immediately after the killing of the victim; and (4)
the circumstances under which the crime was committed and the motives of the accused. This Court also
considers motive and the words uttered by the offender at the time he inflicted injuries on the victim as
additional determinative factors.13 All of these, were proven during the trial. Needless to say, with or without
the phrase, what is important is that all the elements of attempted murder are still alleged in the
Information. Section 6, Rule 110 of the Rules on Criminal Procedure states: ChanRobles Vi rtua lawlib rary

Sec. 6. Sufficiency of complaint or information. – A complaint or information is sufficient if it states the

name of the accused; the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of the commission of the
offense; and the place wherein the offense was committed.
In any case, it is now too late for petitioners to assail the sufficiency of the Information on the ground that
the elements of the crime of attempted murder are lacking. Section 9, Rule 117 of the Rules of Court
provides: Cha nRobles Vi rtua lawlib rary

SEC. 9. Failure to move to quash or to allege any ground therefor.- The failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint or information, either because he did not file
a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections
except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.
Anent the probative value and weight given to the testimony of Elpidio by the CA and the RTC, the same is
not ridden with any error. In People v. Alvarado,14 we held that greater weight is given to the positive
identification of the accused by the prosecution witness than the accused's denial and explanation
concerning the commission of the crime. This is so inasmuch as mere denials are self-serving evidence that
cannot obtain evidentiary weight greater than the declaration of credible witnesses who testified on
affirmative matters.15 chanRoblesvi rtua lLawl ibra ry

It is clear from the records that Elpidio was able to make a positive identification of the petitioners as the
assailants, thus: ChanRoblesVi rtua lawlib rary

Q. Then what happened next Mr. Witness?

A. When I was able to free myself from Salvador Iguiron, I got out of the door of the house, then, I saw
Gary was hiding in the kitchen door holding an axe. Tonahawk with blade of ax was dull and had a handle of
one foot, with the diameter of one inch.

Q. Why did you know that the ax blade of the tom was dull? (sic)

A. I also used that.

Q. Where do you usually keep that in the house of Iguiron?

A. In the kitchen.

Q. How far is that kitchen from where Gary emerged from?

A. He is right in the kitchen.

Q. Then what happened?

A. When I was able to free myself from Salvador, Gary Iguiron was hiding in the kitchen door and holding a
tomhack (sic) whose edge is dull and he hit me on my right side and my head and I got injury (sic) and
blood profusely oozing, I want to get hold of the tomhawk (sic).

Q. Were you able to get of the tomhawk (sic) from Gary?

A. No sir.16 chanRoblesvi rtua lLaw lib rary

xxxx

Q. You said while on that street somebody hit you from behind, who was that?
A. Rolly Villanueva.

Q. Why do you say that it was Rolly Villanueva, considering that it was hit from behind?

A. Because they were about 5 of them at the main gate of the compound.

Q. Who are they?

A. Rolando Villanueva, Nestor Ballesteros, Tommy Ballesteros, Eugene Surigao, Saligan Iguiron.

Q. You said you were hit by Rolando from behind, do you have occasion to see first before you were hit?

A. When I was hit I fell down and I was able to see who hit (sic0, I saw him.

Q. When you fell down, you were able to realize it was Rolando Villanueva who hit you, you mean you
realized what he used in hitting you from behind?

A. It was a pipe. 1/2 inch thick, 24 inches in length.

Q. You said you fell down because of the blow of Rolando Villanueva and you saw him holding that pipe, how
was he holding the pipe when you saw him?

A. When I fell down he was about trying to hit me again.17

In connection therewith, one must not forget the well entrenched rule that findings of facts of the trial court,
its calibration of the testimonial evidence of the parties as well as its conclusion on its findings, are accorded
high respect if not conclusive effect. This is because of the unique advantage of the trial court to observe, at
close range, the conduct, demeanor and deportment of the witness as they testify.18 The rule finds an even
more stringent application where the said findings are sustained by the Court of Appeals.19 chanRoble svirtual Lawli bra ry

It is also of utmost significance that the testimony of Elpidio is corroborated by the medico-legal findings as
testified by Dr. Edgar Michael Eufemio, PGH Chief Resident Doctor of the Department of Orthopedics. He
testified as to the following:
Cha n RoblesVirt ualawli bra ry

Q. And as head of that office, Mr. Witness, why are you here today?

A. Actually, I was called upon by the complainant to rectify regarding, the findings supposedly seen when he
was admitted and when I saw him in one of the sessions of our Out Patient Department.

Q. When was this follow-up session at your department did you see this complainant?

A. Based on the chart, I think it was four (4) months post injury when I first saw the patient.

Q. Why does he has (sic) to make a follow up in your department?

A. Based on this chart, he sustained bilateral leg fractures which necessitated casting. Normally, casting
would take around three (3) months only but since the nature of his fracture was relatively unstable, I think
it necessitated prolong immobilization in a case.

PROSECUTOR TEVES:

Q. Did you personally attend on his needs on that date when you saw him?

A. Yes, ma'am.

Q. And what could have been the cause of these injuries he sustained?

A. I think one of his leg has close fracture, meaning, probably it was caused by a blunt injury rather than a
hacking injury, one on the left side, with an open wound which was very much compatible with a hack at the
leg area.20
Petitioners also claim that the prosecution was not able to prove the presence of treachery or any other
qualifying circumstance.

In this particular case, there was no treachery. There is treachery when the offender commits any of the
crimes against persons, employing means, methods, or forms in the execution, which tend directly and
specially to insure its execution, without risk to the offender arising from the defense which the offended
party might make. The essence of treachery is that the attack comes without a warning and in a swift,
deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to
resist or escape. For treachery to be considered, two elements must concur: (1) the employment of means
of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the
means of execution were deliberately or consciously adopted.21 From the facts proven by the prosecution,
the incident was spontaneous, thus, the second element of treachery is wanting. The incident, which
happened at the spur of the moment, negates the possibility that the petitioners consciously adopted means
to execute the crime committed. There is no treachery where the attack was not preconceived and
deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of
the provocative act of the victim.22 chanRoble svi rtual Lawli bra ry

The RTC, however, was correct in appreciating the qualifying circumstance of abuse of superior strength,
thus:ChanRoblesVirt ualawli bra ry

In the case at bar, the prosecution was able to establish that Salvador Iguiron hit Elpidio Malicsi, Sr. twice
on the head as he was entered (sic) the house of the former. Gary Fantastico hit the victim on the right side
of the head with an axe or tomahawk. The evidence also show that Rolando “Rolly” Villanueva hit the victim
on the head with a lead pipe. And outside while the victim was lying down, Gary hit the legs of the victim
with the tomahawk. lvador also hit the victim with the rattan stick on the thighs, legs and knees. And Titus
Iguiron hit the victim's private organ with a piece of wood. The Provisional Medical Slip (Exh. “D”), Medico
Legal Certificate and Leg Sketch (Exh. “D-2”) and the fracture sheet (Exh. “D-4”) all prove that the victim
suffered injuries to both legs and multiple lacerations on his head. The injury on one leg which was a close
fracture was caused by a blunt instrument like a piece of wood. This injury was caused by Salvador Iguiron.
The other leg suffered an open fracture caused by a sharp object like a large knife or axe. This was caused
by Gary Fantastico who used the tomahawk or axe on the victim. The multiple lacerations on the head were
caused by Gary, Rolly and Salvador as it was proven that they hit Elpidio on the head. There is no sufficient
evidence that the other, accused, namely Saligan Iguiron Y Malicsi, Tommy Ballesteros, Nestor Ballesteros
and Eugene Surigao harmed or injured the victim. Titus having sprayed Elpidio with the tear gas is not
sufficiently proven. Neither was the alleged blow by Titus, using a piece of wood, on the victim's private
organ sufficiently established as the medical certificate did not show any injury on that part of the body of
the victim.

The said injuries inflicted on the complainant after he went back to his sister Isabelita's house. When he
kicked the door, the melee began. And the sequence of the injuries is proven by victim's testimony. But it
was a lopsided attack as the victim was unarmed, while his attackers were all armed (rattan
stick, tomahawk and lead pipe). And the victim was also drunk. This establishes the element of
abuse of superior strength. The suddenness of the blow inflicted by Salvador on Elpidio when he
entered the premises show that the former was ready to hit the victim and was waiting for him
to enter. It afforded Elpidio no means to defend himself. And Salvador consciously adopted the
said actuation. He hit Elpidio twice on the head. Treachery is present in this case and must be
considered an aggravating circumstance against Salvador Iguiron. Rolly Villanueva, Gary Fantastico
and Salvador Iguiron were all armed while Elpidio, inebriated, had nothing to defend himself with. There is
clearly present here the circumstance of abuse of superior strength.23 (Emphasis supplied)
Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim
and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the
aggressor selected or taken advantage of by him in the commission of the crime."24 "The fact that there
were two persons who attacked the victim does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the relative strength of the aggressors and the
victim."25 The evidence must establish that the assailants purposely sought the advantage, or that they had
the deliberate intent to use this advantage.26 "To take advantage of superior strength means to purposely
use excessive force out of proportion to the means of defense available to the person attacked."27 The
appreciation of this aggravating circumstance depends on the age, size, and strength of the parties.28 chanRoblesv irt ual Lawlib rary

Anent the penalty imposed by the RTC and affirmed by the CA, which is an indeterminate penalty of eight
(8) years and one (1) day as minimum, to ten (10) years as maximum and ordered them to pay actual
damages of P17,300.00 and moral damages of P10,000.00, this Court finds an obvious error.

For the crime of attempted murder, the penalty shall be prision mayor, since Article 51 of the Revised Penal
Code states that a penalty lower by two degrees than that prescribed by law for the consummated felony
shall be imposed upon the principals in an attempt to commit a felony.29 Under the Indeterminate Sentence
Law, the maximum of the sentence shall be that which could be properly imposed in view of the attending
circumstances, and the minimum shall be within the range of the penalty next lower to that prescribed by
the Revised Penal Code. Absent any mitigating or aggravating circumstance in this case, the maximum of
the sentence should be within the range of prision mayor in its medium term, which has a duration of eight
(8) years and one (1) day to ten (10) years; and that the minimum should be within the range of prision
correccional, which has a duration of six (6) months and one (1) day to six (6) years. Therefore, the penalty
imposed should have been imprisonment from six (6) years of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum.

WHEREFORE, the Petition for Review on Certiorari dated January 20, 2010 of petitioners Gary Fantastico
and Rolando Villanueva is hereby DENIED. Consequently, the Decision dated August 31, 2007 and
Resolution dated January 7, 2010 of the Court of Appeals are hereby AFFIRMED with
the MODIFICATION that the petitioners are sentenced to an indeterminate penalty of imprisonment from
six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum. Petitioners are also ORDERED to pay P17,300.00 as actual damages, as well as P10,000.00
moral damages as originally ordered by the RTC. In addition, interest is imposed on all damages awarded at
the rate of six percent (6%) per annum from date of finality of judgment until fully paid.

SO ORDERED. cralawlawlibra ry

Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

Endnotes:

THIRD DIVISION

G.R. No. 188751, November 16, 2016

BONIFACIO NIEVA Y MONTERO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

JARDELEZA, J.:

This is a Petition for Review on Certiorari1 of the February 25, 2009 Decision2 and July 9, 2009 Resolution3 of
the Court of Appeals (CA) in CA G.R. CR No. 31336, finding petitioner Bonifacio Nieva (Nieva) guilty beyond
reasonable doubt of the crime of frustrated homicide.

Facts

In an Information dated November 2, 2005, Nieva was charged with the crime of Frustrated Murder in the
Regional Trial Court (RTC) of Malabon, Branch 73.4 The accusatory portion of the Information, docketed as
Criminal Case No. 33415-MN, reads: ChanRobles Virtualawl ibra ry

That on or about the 28th day of October 2005, in the City of Malabon, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, acting with discernment, while armed
with a gun, with intent to kill, treachery and evident premeditation, did, then and there, willfully, unlawfully
and feloniously attack, assault, shoot with the said gun one JUDY DELATAVO IGNACIO, hitting the latter
on her left leg, thus accused performed all the acts of execution which would produce the crime of Murder,
but which nevertheless did not produce it by reason of some other causes independent of the will of the
accused, that is, by the timely and able medical attendance rendered to the victim which prevented her
death.

CONTRARY TO LAW.5 chanroble svirtual lawlib rary

During arraignment, Nieva entered a plea of not guilty. Trial then ensued. The prosecution presented five
(5) witnesses, namely: the victim, Judy Ignacio (Judy); the eyewitnesses, Luna Ignacio (Luna) and
Raymundo Delatavo (Raymundo); the attending physician, Dr. Dindohope Serrano (Dr. Serrano); and the
arresting officer, PO2 Jesus Del Fiero (PO2 Del Fiero).6 c hanro bles law

Prosecution's version

On October 28, 2005, at around six o'clock in the evening, Luna and Raymundo were doing carpentry works
for Judy at Kaunlaran, Hernandez, Catmon, Malabon City. Judy was supervising the construction of her nipa
hut when Nieva arrived and approached her.7 Judy was then the President of the Catmon Homeowners
Association. Nieva inquired on the electrification project of the Homeowners Association, to which Judy
replied that the matter was already taken care of by the Manila Electric Company (MERALC0).8 However,
Nieva suddenly shouted at Judy and cursed her saying: "Mga putang ina nyo, lima kayo mga president kayo,
kung gusto nyo magkaroon ng mga problema, bibigyan ko kayo ng mga problema ngayon."9 He then drew a
.357 caliber revolver (wrapped in a white piece of cloth) from his waist.10 Overwhelmed with fear, Judy clung
to Luna's back and used him as a shield against Nieva.11 chanro bleslaw

Nieva, who was about two arms' length away, pointed his gun at Judy and fired several times but the gun
jammed.12 At this point, Raymundo, who was at the roof of the nipa hut, jumped from the hut to help her
aunt, Judy. However, before Raymundo reached Judy, he heard a gunshot and saw Judy fall to the
ground.13 As she simultaneous fell, Judy was able to push Luna towards Nieva. Luna and Nieva then
grappled for the gun. With the help of Raymundo, Luna seized the gun from Nieva.14 chanrobles law

Judy was brought to the Manila Central University (MCU) Hospital. Dr. Serrano, a surgeon at the MCU
Hospital, attended to the wound of Judy. He stated that Judy suffered a gunshot wound at her right leg,
which caused a bone fracture at her right tibia and lacerated wound at the left thigh.15 He confirmed that
Judy's gunshot wound could have led to her death if not for the timely medical attention.16 chan roble slaw

Meanwhile, PO2 Del Fiero, who was also a resident of Kaunlaran, Hernandez, Catmon, Malabon City, went to
the scene of the crime upon learning that Judy was shot. Luna surrendered the gun to PO2 Del
Fiero.17 Thereafter, PO2 Del Fiero arrested Nieva in the latter's home.18 chanrob leslaw

Defense's version

The defense had three witnesses, namely: petitioner Nieva himself; his wife, Luz, and son, Julius. However,
the testimonies of Luz and Julius were dispensed with since they would merely corroborate Nieva's
defense.19 chan roble slaw

Nieva narrated that at about six-thirty in the evening, while on his way to buy cigarettes, he passed by the
Kaunlaran ng Samahan Hernandez Catmon Homeowners, where he met Judy. He inquired on the
electrification of the Homeowners Association and Judy informed him that it was already done.20Thereafter,
a heated argument ensued between him and Judy. The latter accused him of having a hand on an electric
post that fell down. Irritated, Nieva pulled a handkerchief from his pocket and wrapped it on his right hand,
preparatory to boxing Judy. Suddenly, however, Luna got in front of Judy and pointed a gun towards
Nieva.21 chan robles law

Nieva then grabbed the gun from Luna. In the process, the gun went off and Nieva was unaware if the bullet
hit anyone. He and Luna went down as they continued to wrestle for the possession of the gun. However,
Raymundo intervened and smashed Nieva at the back with a hammer causing Nieva to let go of Luna.22 chanrob leslaw

As Luna now had the gun, Nieva clung at Raymundo. Luna tailed to shoot Nieva because the latter's wife,
who happens to be Luna's first cousin, shielded Nieva with her body.23 chanrobles law

RTC Ruling

In its Decision24 dated October 11, 2007, the RTC convicted Nieva of Frustrated Homicide only, to wit: Cha nRobles Vi rtua lawlib rary

x x x [T]he Court cannot agree that this is a case of frustrated murder. The reason is simple.

As stated above, it is not disputed that an argument between complainant and the accused immediately
preceded the shooting incident. There was, therefore, no evident premeditation and there could be no
treachery as well. Consequently, the Court finds that the offense committed is frustrated homicide
only.25
cralaw redc hanro blesvi rt uallawl ibra ry

In the absence of any aggravating or mitigating circumstance, Nieva was sentenced to imprisonment of six
(6) years and one (1) day of prision correccional, as minimum, to twelve (12) years and 1 day of prision
mayor, as maximum. He was also ordered to pay Judy the amount of P40,000.00 by way of reimbursement
for her hospitalization expenses; and another P40,000.00 as moral damages.26 chanrob leslaw

Nieva appealed to the CA. He took issue with the inconsistencies of the testimonies of the prosecution
witnesses, particularly Judy, Luna and Raymundo. He also claimed that the exempting circumstance of
accident is applicable in his case;27 but assuming that he is criminally liable, he should only be convicted of
physical injuries because he had no intent to kill Judy.28 chan ro bleslaw

CA Ruling

In its Decision dated February 25, 2009, the CA affirmed Nieva's conviction, with modification only as to the
penalty imposed. The decretal portion reads: ChanRoble sVirt ualawli bra ry

WHEREFORE, premises considered, the instant appeal is hereby DENIED. The Decision dated October 11,
2007 of the Regional Trial Court, Branch 73, Malabon City finding accused appellant Bonifacio Nieva y
Montero guilty beyond reasonable doubt of the crime of Frustrated Homicide is AFFIRMED with
MODIFICATION in that he is sentenced to suffer imprisonment of four (4) years, two (2) months and one
(1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum.

SO ORDERED.29 chanroblesv irt uallawl ibra ry

Nieva filed a Motion for Reconsideration30 which the CA denied in its Resolution dated July 9, 2009; hence,
this petition for review.

Issue

Whether the CA erred in affirming the conviction of Nieva.

Our Ruling

We rule in the negative and resolve to deny the petition.

Nieva submits the following defenses to prove that he is innocent of the crime of frustrated homicide:

a. The accounts of the prosecution witnesses are highly questionable;

b. Nieva is exempt from criminal liability because the shooting of Judy is a mere accident; and cralawlawlib rary

c. Nieva had no intent to kill Judy, thus, he should only be convicted of physical injuries.

We are not persuaded.

As his first defense, Nieva harps on the alleged inconsistencies among the testimonies of Judy, Luna and
Raymundo, particularly on the position of the gun during the shooting incident. He recounts that while Judy
testified that the gun was pointed to the ground when it fired, Luna claimed that the gun was pointed to him
(Luna) since he was in front of Judy; whereas, Raymundo averred that when the gun was fired, it was
pointed at Judy.31 Nieva maintains that the conflicting versions of the prosecution witnesses strongly
suggest that Nieva did not really aim a gun towards Judy and that Judy might have only fabricated the
charge against Nieva to pin him down because of the animosity between them.32 cha nrob leslaw

At the outset, it is a basic rule that questions on the credibility of witnesses is best addressed to the trial
courts because of their unique position to not only examine real and testimonial evidence but also observe
the elusive and incommunicable evidence of the witnesses' deportment while on stand, a privilege which is
denied to the appellate court.33 The trial court's assessment of the credibility of the witnesses is therefore
accorded great respect on appeal, in the absence of evidence showing that the trial court disregarded or
overlooked significant facts that would merit the reversal of its findings.34 The reviewing court is bound by
the findings of the trial court, more so when the same is affirmed by the appellate court on appeal.35 chanrob leslaw

In the case before us, both the RTC36 and the CA37 found that the witnesses categorically and positively
identified Nieva to have fired a gun towards Judy. Nieva fired the gun several times, with each attempt
misfiring, until finally the gun went off and hit Judy at her upper right leg. The perceived inconsistency on
where the gun was aimed at is a trivial matter which cannot negate the credibility of the witnesses,
especially where the witnesses were consistent on their account relating to the principal occurrence, which is
the shooting of Judy, and their positive identification of Nieva as the assailant.38 chanroble slaw

Further, far from weakening the credibility of the witnesses, minor inconsistencies actually bolster their
credibility. Thus, in People v. Malate,39 we stated that: ChanRoblesVirtuala wlibra ry
Furthermore, accused-appellant cannot plausibly bank on the minor inconsistencies in the testimony of the
complainant to discredit her account of the incident. Even if they do exist, minor and insignificant
inconsistencies tend to bolster, rather than weaken, the credibility of the witness for they show
that his testimony was not contrived or rehearsed. Trivial inconsistencies do not rock the
pedestal upon which the credibility of the witness rests, but enhances credibility as they
manifest spontaneity and lack of scheming. As aptly held in the American case of State v. Erikson, the
rule that a victim's testimony in sexual assault cases must be corroborated "does not apply where the
inconsistency or contradiction bears upon proof not essential to the case." Well to point, even the most
truthful witnesses can sometimes make mistakes, but such minor lapses do not necessarily affect
their credibility.40(Emphasis supplied; citations omitted.)
In this connection, we concur with the CA's finding that the slight variance on Judy's testimony as to the aim
of the gun could have been attributed to the suddenness of the situation and her confusion.41 Thus, the
minor lapse in her testimony does not affect her credibility.

As his next defense, Nieva denies that he fired a gun towards Judy. Instead, he accuses Luna to have
brought the gun, pointed it against him and together they grappled for the possession of the same until
suddenly the gun fired. He pleads that the shooting of Judy is a mere accident; hence, he should be exempt
from criminal liability.42 chan roble slaw

We disagree. It is well-entrenched in jurisprudence that denial is an intrinsically weak defense.43 If not

substantiated by clear and convincing evidence, denial is merely a negative and self-serving evidence which
has no weight in law. It cannot prevail over the categorical and consistent positive identification of credible
witnesses.44 Here, Nieva's version of the story is not substantiated with proof other than his own bare
assertions. Nieva's testimony cannot stand against the testimonies of Judy, Luna and Raymundo which are
consistent in material points.

Nieva cannot also invoke the exempting circumstance of accident to free him from criminal liability. Article
12 (4), Book I of the Revised Penal Code of the Philippines45 (Revised Penal Code) reads: ChanRoblesVirtualawl ibra ry

Art. 12. Circumstances which exempt from criminal liability. - The following are exempt from criminal
liability:
chanRoble svirtual Lawlib ra ry

xxx

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without
fault or intention of causing it.
The basis for exemption under the above-stated provision is the complete absence of negligence and intent.
The accused commits a crime but there is no criminal liability. An accident is a fortuitous circumstance,
event or happening; an event happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.46 It is an affirmative defense
which the accused is burdened to prove by clear and convincing evidence.47 chan roble slaw

To successfully claim the defense of accident, the accused must show that the following circumstances are
present: (1) a person is performing a lawful act; (2) with due care; (3) he causes an injury to another by
mere accident; and (4) he had no fault in or intention of causing the injury.48None of these
circumstances are present in this case.

To start, Nieva was not performing a lawful act when he drew a gun and pointed it at Judy. Thus, in People
v. Nepomuceno, Jr.,49 we ruled that drawing a weapon in the course of a quarrel, the same not being in self
defense, is unlawful, as it at least constitutes light threats.50 Subsequently, Nieva fired the gun several
times. In his initial attempts, the bullet of the gun jammed; yet, Nieva did not stop until the gun finally fired
and hit its target.

This clearly shows that Nieva intentionally and persistently performed the act complained of in order to
successfully maim Judy. He cannot now claim that he is without fault.

As his last defense, Nieva submits that he has no intent to kill Judy considering that the gun was pointed to
the ground when it was fired and Judy's wound was not fatal.51 chanroble slaw

Nieva's contentions are untenable.

In Rivera v. People,52 we explained that intent to kill may be proved by: (a) the means used by the
malefactors; (b) the nature, location and number of wounds sustained by the victim; (c) the conduct of the
malefactors before, at the time, or immediately after the killing of the victim; (d) the circumstances under
which the crime was committed; and (e) the motives of the accused.53 chanroble slaw

We concur with the findings of the CA that intent to kill was present.54 It is undisputed that Nieva used a
gun, a deadly weapon, in assaulting Judy. At that time, Judy was unarmed and could not have defended
herself. Nieva fired the gun several times towards Judy. If the bullets had not jammed, Nieva could have
killed Judy through multiple gunshot wounds. As it was, the gun's bullets jammed and the gun fired only
once; albeit, leaving Judy with a wound on her upper right leg, which according to Dr. Serrano could have
caused her death if not for the timely medical intervention at the MCU Hospital. Prior to the incident, Nieva
also admitted that there had been several quarrels between him and Judy.55 These circumstances showing
the weapon used, the nature of the wound sustained by Judy, and the conduct of Nieva before and during
the incident, manifest Nieva's intent to kill Judy.

Nieva repeatedly uses the testimony of Judy that the gun was aimed at the ground when it fired in order to
exculpate him from liability. However, as we had explained earlier, Nieva fired the gun several times before
the bullet finally went off. With the urgency and suddenness of the situation, minor lapses in Judy's
testimony cannot be used against her.

In fine, the prosecution established beyond reasonable doubt the elements of frustrated homicide, which
are: first, the accused intended to kill his victim, as manifested by his use of a deadly weapon in his
assault; second, the victim sustained a fatal or mortal wound but did not die because of timely medical
assistance; and third, none of the qualifying circumstances for murder under Article 248 of the Revised
Penal Code, as amended, is present.56 chan roble slaw

Finally, in light of recent jurisprudence, we modify the award of damages granted by the RTC and affirmed
by the CA. People v. Jugueta57 teaches that where the crime of frustrated homicide is committed, moral
damages as well as civil indemnity should be awarded to the victim in the

amount of P30,000.00 each. Thus, we rule that Judy is entitled to recover civil indemnity in the amount of
P30,000.00. However, we decrease the amount of moral damages given by the courts a quo from
P40,000.00 to P30,000.00. The monetary awards shall earn interest at the rate of six percent (6%) per
annum from the date of the finality of this decision until fully paid.58 cha nrob leslaw

WHEREFORE, the petition is DENIED for lack of merit. The February 25, 2009 Decision and July 9, 2009
Resolution of the Court of Appeals in CA-G.R. CR No. 31336 are
hereby AFFIRMED with MODIFICATIONS in that:

1. The award of moral damages is decreased from P40,000.00 to P30,000.00;

2. Judy Ignacio is awarded civil indemnity m the amount of P30,000.00; and cralawlawlibra ry

3. An interest of six percent (6%) per annum is imposed on all monetary awards from the date of the
finality of this Decision until full payment.

SO ORDERED. chanRoblesvirt ual Lawlib rary

Peralta,**(Acting Chairperson), Perez, and Reyes, JJ., concur.

Velasco, Jr., (Chairperson), J., on leave.

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.

Office of the Solicitor-General Hilado for appellee.
RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs
of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the
case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect, with the deed which, upon
its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery,
in order that the simple act of entering by means of force or violence another person's dwelling may
be considered an attempt to commit this offense, it must be shown that the offender clearly intended
to take possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably
be inferred. From the fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of force said
store against the will of its owner. That his final objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.
1avv phil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and
 can not furnish grounds by themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be
able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is
to say, that the acts performed must be such that, without the intent to commit an offense,
they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for the designation of the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the
Revised Penal Code, this offense is committed when a private person shall enter the dwelling of
another against the latter's will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ."
Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs.
Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions,
— inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to
dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

EN BANC

[G.R. No. 143468-71. January 24, 2003]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FREEDIE

LIZADA @ FREDIE LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision of the Regional Trial Court of

[1]

Manila, Branch 54, finding accused-appellant Freedie Lizada guilty beyond

reasonable doubt of four (4) counts of qualified rape and meting on him the
death penalty for each count.

I. The Charges

Accused-appellant was charged with four (4) counts of qualified rape

[2]

under four separate Informations. The accusatory portion of each of the four
Informations reads:

That sometime in August 1998 in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means
of force, violence and intimidation upon the person of one ANALIA ORILLOSA y
AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA y AGOO, against her will and consent.

Contrary to law.

XXX

That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law.

XXX

That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law.

XXX

That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.

Contrary to law. [3]

The four (4) Informations were docketed as Criminal Cases Nos. 99-
171390, 99-171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by
counsel de parte and entered a plea of not guilty to each of the charges. A [4]

joint trial then ensued.

II. Evidence of the Prosecution [5]

 Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol,
had three (3) children, namely: Analia, who was born on December 18,
1985; Jepsy, who was 11 years old, and Rossel, who was nine years
[6]

old. However, the couple decided to part ways and live separately. Rose left
Bohol and settled in Manila with her young children. She worked as a waitress
to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as
husband and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo,
Manila. In 1996, Rose resigned from her job as a waitress. She secured a
loan, bought a truck and used it for her business.
In the meantime, Rose secured a loan anew and used the proceeds
thereof to put up a video shop in her house. She sold Avon products from
house to house to augment her income.Whenever she was out of their house,
Rossel and Analia took turns in tending the video shop and attending to
customers.
Sometime in 1996, Analia was in her room when accused-appellant
entered. He laid on top of her, removed her T-shirt and underwear. He then
inserted his finger in her vagina. He removed his finger and inserted his penis
in her vagina. Momentarily, she felt a sticky substance coming out from his
penis. She also felt pain in her sex organ. Satiated, accused-appellant
dismounted but threatened to kill her if she divulged to anyone what he did to
her.Accused-appellant then returned to his room. The incident lasted less than
one hour. Petrified by the threats on her life, Analia kept to herself what
happened to her. [7]

Sometime in August 1997, accused-appellant entered again the room of

Analia, placed himself on top of her and held her legs and arms. He then
inserted his finger into her sex organ (fininger niya ako). Satiated, accused-
appellant left the room. During the period from 1996 to 1998, accused-
appellant sexually abused private complainant two times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their
house studying her assignments. Accused-appellant was also in the
sala. Rossel tended the video shop while his mother was away. Analia went
into her room and lay down in bed. She did not lock the door of the room
because her brother might enter any time. She wanted to sleep but found it
difficult to do so. Accused-appellant went to his room next to the room of
Analia. He, however, entered the room of Analia. He was wearing a pair of
short pants and was naked from waist up. Analia did not mind accused-
appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed
himself on top of her, held her hands and legs and fondled her breasts. She
struggled to extricate herself.Accused-appellant removed her panty and
touched her sex organ. Accused-appellant inserted his finger into her vagina,
extricated it and then inserted his penis into her vagina. Accused-appellant
ejaculated. Analia felt pain in her sex organ. Momentarily, Rossel passed by
the room of Analia after drinking water from the refrigerator, and peeped
through the door. He saw accused-appellant on top of Analia. Accused-
appellant saw Rossel and dismounted. Accused-appellant berated Rossel and
ordered him to go to his room and sleep. Rossel did. Accused-appellant then
left the room. Analia likewise left the room, went out of the house and stayed
outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not
divulge to her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-
appellant was in the sala of the house watching television. Analia tended the
video shop. However, accused-appellant told Analia to go to the sala. She
refused, as nobody would tend the video shop. This infuriated accused-
appellant who threatened to slap and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed
in the video shop. When Rose returned, a heated argument ensued between
accused-appellant and Analia.Rose sided with her paramour and hit
Analia. This prompted Analia to shout. Ayoko na, ayoko na. Shortly thereafter,
Rose and Analia left the house on board the motorcycle driven by her mother
in going to Don Bosco Street, Moriones, Tondo, Manila, to retrieve some
tapes which had not yet been returned. When Rose inquired from her
daughter what she meant by her statement, ayoko na, ayoko na, she told her
mother that accused-appellant had been touching the sensitive parts of her
body and that he had been on top of her. Rose was shocked and
incensed. The two proceeded to Kagawad Danilo Santos to have accused-
appellant placed under arrest. On November 10, 1998, the two proceeded to
the Western Police District where Analia gave her Affidavit-Complaint to PO1
Carmelita Nocum in the presence of SPO2 Fe H. Avindante. She related to
the police investigator that accused-appellant had touched her breasts and
arms in August, 1998, September 15, 1998, October 22, 1998 and on
November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia
examination by Dr. Armie Umil, a medico-legal officer of the NBI. The medico-
legal officer interviewed Analia, told him that she was raped in May, 1997 at
3:00 p.m. and November 5, 1998 at 3:00 p.m. [8]

Dr. Umil prepared and signed a report on Living Case No. MO-98-1265
which contained her findings during her examination on Analia, thus:
xxx

Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,

developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.

No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette,
tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice
measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1). No evident sign of extragenital physical injuries noted on the body of the subject at
the time of examination.

2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete
penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury.[9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo
lang ang sinabi ko. When Rose inquired from her daughter what she meant by
her statement, Analia revealed to her mother that accused-appellant had
sexually abused her. On December 15, 1998, Analia executed a Dagdag na
Salaysay ng Paghahabla and charged accused-appellant with rape. [10]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month

of courtship, he and Rose agreed in 1994 to live together as husband and
wife. He was then a utility worker with the Navotas Branch of the Philippine
Banking Corporation. Rose, on the other hand, was a waitress at the Golden
Bird beer house at Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved
the children of Rose as if they were his own children. He took care of them, as
in fact he cooked and prepared their food before they arrived home from
school. At times, he ironed their school uniforms and bathed them, except
Analia who was already big. Analia was hard-headed because she disobeyed
him whenever he ordered her to do some errands. Because of Analias
misbehavior, accused-appellant and Rose oftentimes quarreled. Rose even
demanded that accused-appellant leave their house. Another irritant in his and
Roses lives were the frequent visits of the relatives of her husband.
Sometime in 1997, accused-appellant was retrenched from his
employment and received a separation pay of P9,000.00 which he used to put
up the VHS Rental and Karaoke from which he earned a monthly income
of P25,000.00. While living together, accused-appellant and Rose acquired
two colored television sets, two VHS Hi-fi recorders, one VHS player, one
washing machine, one scooter motor, two VHS rewinders, one sala set, one
compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and
Rossel to testify against him and used them to fabricate charges against him
because Rose wanted to manage their business and take control of all the
properties they acquired during their coverture. Also, Rose was so
exasperated because he had no job.

IV. The Verdict

On May 29, 2000, the trial court rendered judgment against accused-
appellant finding him guilty beyond reasonable doubt of four (4) counts of
rape, defined and penalized in the seventh paragraph, no. 1, Art. 335 of the
Revised Penal Code, and meted on him the death penalty for each count. The
dispositive portion of the decision reads:

From all the evidence submitted by the prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of the crime charged against him in these
four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each
and every case as provided for in the seventh paragraph, no. 1, Article 335 of the
Revised Penal Code.

SO ORDERED. [11]

V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in

his brief that:
 THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]

XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF
FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the

decision of the trial court is null and void as it failed to comply with the
requirements of Section 14, Article VIII of the 1987 Constitution and Section 1,
Rule 36 of the 1997 Rules of Civil Procedure, as amended. He avers that the
court a quo made no findings of facts in its decision. The trial court merely
summarized the testimonies of the witnesses of the prosecution and those of
accused-appellant and his witnesses, and forthwith set forth the decretal
portion of said decision. The trial court even failed to state in said decision the
factual and legal basis for the imposition of the supreme penalty of death on
him. The Solicitor General, on the other hand, argues that there should be no
mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed
by crowded dockets and time constraints. Even if the trial court did not
elucidate the grounds as the legal basis for the penalties imposed,
nevertheless the decision is valid. In any event, the Solicitor General contends
that despite the infirmity of the decision, there is no need to remand the case
to the trial court for compliance with the constitutional requirement as the
Court may resolve the case on its merits to avoid delay in the final disposition
of the case and afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph
14 of the 1987 Constitution provides that no decision shall be rendered by any
court without expressing therein clearly and distinctly the facts and the law on
which it is based. This requirement is reiterated and implemented by Rule
120, Section 2 of the 1985 Rules on Criminal Procedure, as amended, which
reads:

SEC. 2. Form and contents of judgment.The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b) the participation
of the accused in the commission of the offense, whether as principal, accomplice, or
accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil
liability or damages caused by the wrongful act to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived. [14]

The purpose of the provision is to inform the parties and the person
reading the decision on how it was reached by the court after consideration of
the evidence of the parties and the relevant facts, of the opinion it has formed
on the issues, and of the applicable laws. The parties must be assured from a
reading of the decision of the trial court that they were accorded their rights to
be heard by an impartial and responsible judge. More substantial reasons for
[15]

the requirement are:

For one thing, the losing party must be given an opportunity to analyze the decision so
that, if permitted, he may elevate what he may consider its errors for review by a
higher tribunal. For another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept the verdict in good
grace instead of prolonging the litigation with a useless appeal. A third reason is that
decisions with a full exposition of the facts and the law on which they are based,
especially those coming from the Supreme Court, will constitute a valuable body of
case law that can serve as useful references and even as precedents in the resolution of
future controversies.[16]

The trial court is mandated to set out in its decision the facts which had
been proved and its conclusions culled therefrom, as well as its resolution on
the issues and the factual and legal basis for its resolution. Trial courts[17]

should not merely reproduce the respective testimonies of witnesses of both

parties and come out with its decretal conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on
direct and cross examinations and merely made referral to the documentary
evidence of the parties then concluded that, on the basis of the evidence of
the prosecution, accused-appellant is guilty of four (4) counts of rape and
sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the
prosecution based on their evidence, the issues raised by the parties and its
resolution of the factual and legal issues, as well as the legal and factual
bases for convicting accused-appellant of each of the crimes charged. The
trial court rendered judgment against accused-appellant with
the curt declaration in the decretal portion of its decision that it did so based
on the evidence of the prosecution.The trial court swallowed hook, line and
sinker the evidence of the prosecution. It failed to explain in its decision why it
believed and gave probative weight to the evidence of the
prosecution. Reading the decision of the trial court, one is apt to conclude that
the trial court ignored the evidence of accused-appellant. The trial court did
not even bother specifying the factual and legal bases for its imposition of the
supreme penalty of death on accused-appellant for each count of rape. The
trial court merely cited seventh paragraph, no. 1, Article 335 of the Revised
Penal Code. The decision of the trial court is a good example of what a
decision, envisaged in the Constitution and the Revised Rules of Criminal
Procedure, should not be.
The Court would normally remand the case to the trial court because of
the infirmity of the decision of the trial court, for compliance with the
constitutional provision. However, to avert further delay in the disposition of
the cases, the Court decided to resolve the cases on their merits considering
that all the records as well as the evidence adduced during the trial had been
elevated to the Court. The parties filed their respective briefs articulating
[18]

their respective stances on the factual and legal issues.

In reviewing rape cases, this Court is guided by the following principles:
(1) to accuse a man of rape is easy but to disprove it is difficult though the
accused may be innocent; (2) considering the nature of things, and only two
persons are usually involved in the crime of rape, the testimony of the
complainant should be scrutinized with great caution; (3) the evidence for the
prosecution must stand or fall on its own merits and not be allowed to draw
strength from the weakness of the evidence of the defense. By the very
[19]

nature of the crime of rape, conviction or acquittal depends almost entirely on

the credibility of the complainants testimony because of the fact that usually
only the participants can testify as to its occurrence. However, if the accused
raises a sufficient doubt as to any material element of the crime, and the
prosecution is unable to overcome it with its evidence, the prosecution has
failed to discharge its burden of proving the guilt of the accused beyond cavil
of doubt and hence, the accused is entitled to an acquittal.
Anent the second assignment of error, we will resolve the same for
convenience, as follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)

Accused-appellant avers that the prosecution failed to adduce the

requisite quantum of evidence that he raped the private complainant precisely
on September 15, 1998 and October 22, 1998. Moreover, the medical findings
of Dr. Armie Umil show that the hymen of the private complainant was intact
and its orifice so small as to preclude complete penetration by an average
size adult Filipino male organ in full erection without producing any genital
injury. The physical evidence belies private complainants claim of having been
deflowered by accused-appellant on four different occasions. The Office of the
Solicitor General, for its part, contends that the prosecution through the
private complainant proved the guilt of accused-appellant for the crime
charged on both counts.
The contention of accused-appellant does not persuade the Court. The
private complainant testified that since 1996, when she was only eleven years
old, until 1998, for two times a week, accused-appellant used to place himself
on top of her and despite her tenacious resistance, touched her arms, legs
and sex organ and inserted his finger and penis into her vagina. In the
process, he ejaculated. Accused-appellant threatened to kill her if she
divulged to anyone what he did to her. Although private complainant did not
[20]

testify that she was raped on September 15, 1998 and October 22, 1998,
nevertheless accused-appellant may be convicted for two counts of rape, in
light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are
alleged to have been committed on or about September 15, 1998 and on or
about October 22, 1998. The words on or about envisage a period, months or
even two or four years before September 15, 1998 or October 22, 1998. The
prosecution may prove that the crime charged was committed on or about
September 15, 1998 and on or about October 22, 1998.
In People vs. Gianan, this Court affirmed the conviction of accused-
[21]

appellant of five (5) counts of rape, four of which were committed in December
1992 (two counts) and one each in March and April, 1993 and in November,
1995 and one count of acts of lasciviousness committed in December 1992,
on a criminal complaint for multiple rape, viz:

That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12) year
old daughter, and by means of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M.
Gianan, against her will and consent, to her damage and prejudice. [22]

On the contention of accused-appellant in said case that his conviction for

rape in December 1992 was so remote from the date (November 1995)
alleged in the Information, so that the latter could no longer be considered as
being as near to the actual date at which the offense was committed as
provided under Section 11, Rule 110 of the Rules on Criminal Procedure, as
amended, this Court held:

Accused-appellant nevertheless argues that his conviction for rape in December 1992
is so remote from the date (November 1995) alleged in the information, so that the
latter could no longer be considered as being as near to the actual date at which the
offense was committed as provided under Rule 110, 11.

This contention is also untenable. In People v. Garcia, this Court upheld a conviction
for ten counts of rape based on an information which alleged that the accused
committed multiple rape from November 1990 up to July 21, 1994, a time difference
of almost four years which is longer than that involved in the case at bar. In any case,
as earlier stated, accused-appellants failure to raise a timely objection based on this
ground constitutes a waiver of his right to object.
[23]

Moreover, when the private complainant testified on how accused-

appellant defiled her two times a week from 1996 until 1998, accused-
appellant raised nary a whimper of protest.Accused-appellant even rigorously
cross-examined the private complainant on her testimony on direct
examination. The presentation by the prosecution, without objection on the
part of accused-appellant, of evidence of rape committed two times a week
from 1996 until 1998 (which includes September 15, 1998 and October 22,
1998) to prove the charges lodged against him constituted a waiver by
accused-appellant of his right to object to any perceived infirmity in, and in the
amendment of, the aforesaid Informations to conform to the evidence
adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998
does not preclude her having been repeatedly sexually abused by accused-
appellant. The private complainant being of tender age, it is possible that the
penetration of the male organ went only as deep as her labia. Whether or not
the hymen of private complainant was still intact has no substantial bearing on
accused-appellants commission of the crime. Even the slightest penetration
[24]

of the labia by the male organ or the mere entry of the penis into the aperture
constitutes consummated rape. It is sufficient that there be entrance of the
male organ within the labia of the pudendum. In People vs. Baculi, cited
[25]

in People vs. Gabayron, we held that there could be a finding of rape even if
[26]

despite repeated intercourse over a period of four years, the complainant still
retained an intact hymen without injury. In these cases, the private
complainant testified that the penis of accused-appellant gained entry into her
vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya
yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir.[27](Underlining supplied)

We agree with accused-appellant that he is guilty only of two counts of

simple rape, instead of qualified rape. The evidence on record shows that
accused-appellant is the common-law husband of Rose, the mother of private
complainant. The private complainant, as of October 1998, was still 13 years
old, and under Article 335 as amended by Republic Act 7659, the minority of
the private complainant, concurring with the fact that accused-appellant is the
common-law husband of the victims mother, is a special qualifying
circumstance warranting the imposition of the death penalty. However, said [28]

circumstance was not alleged in the Informations as required by Section 8,

Rule 110 of the Revised Rules on Criminal Procedure which was given
retroactive effect by this Court because it is favorable to the accused. Hence, [29]

even if the prosecution proved the special qualifying circumstance of minority

of private complainant and relationship, the accused-appellant being the
common-law husband of her mother, accused-appellant is guilty only of
simple rape. Under the given law, the penalty for simple rape is reclusion
perpetua. Conformably with current jurisprudence, accused-appellant is liable
to private complainant for civil indemnity in the amount of P50,000.00 and
moral damages in the amount of P50,000.00 for each count of rape, or a total
of P200,000.00.

Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on
or about August 1998 and November 5, 1998)

Accused-appellant avers that (a) the Information in Criminal Case No. 99-
171390 is defective because the date of the offense on or about August 1998
alleged therein is too indefinite, in violation of Rule 110, Section 11 of the
Revised Rules on Criminal Procedure which reads:

Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint
or information the precise date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to have been committed on a
date as near as possible to the actual date of its commission. (11a) [30]

Accused-appellant further asserts that the prosecution failed to prove that

he raped private complainant in August 1998. Hence, he argues, he should be
acquitted of said charge. The Office of the Solicitor General, for its part,
argued that the date on or about August 1998 is sufficiently definite. After all,
the date of the commission of the crime of rape is not an essential element of
the crime. The prosecution adduced conclusive proof that accused-appellant
raped private complainant on or about August 1998, as gleaned from her
testimony during the trial.

The Court does not agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the
crime. Failure to specify the exact date when the rape was committed does not render
the Information defective. The reason for this is that the gravamen of the crime of rape
is carnal knowledge of the private complainant under any of the circumstances
enumerated under Article 335 of the Revised Penal Code, as amended. Significantly,
accused-appellant did not even bother to file a motion for a bill of particulars under
Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned under the Information and
entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had
rested its case. It was only on appeal to this Court that accused-appellant questioned
for the first time the sufficiency of the Information filed against him. It is now too late
in the day for him to do so. Moreover, in People vs. Salalima, this Court held that:
[31]
Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The precise
date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances
enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that
the offense was committed at any time as near to the actual date when the offense was
committed an information is sufficient. In previous cases, we ruled that allegations
that rapes were committed before and until October 15, 1994, sometime in the year
1991 and the days thereafter, sometime in November 1995 and some occasions prior
and/or subsequent thereto and on or about and sometime in the year 1988 constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal
Procedure.

In this case, although the indictments did not state with particularity the dates when
the sexual assaults took place, we believe that the allegations therein that the acts were
committed sometime during the month of March 1996 or thereabout, sometime during
the month of April 1996 or thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he was charged with since all
the elements of rape were stated in the informations. As such, appellant cannot
complain that he was deprived of the right to be informed of the nature of the cases
filed against him.Accordingly, appellants assertion that he was deprived of the
opportunity to prepare for his defense has no leg to stand on.

The prosecution proved through the testimony of private complainant that

accused-appellant raped her two times a week in 1998. As in Criminal Cases
Nos. 99-171392 and 99-171393, accused-appellant is guilty only of simple
rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-
appellant avers that he is not criminally liable of rape. We agree with accused-
appellant. The collective testimony of private complainant and her younger
brother Rossel was that on November 5, 1998, accused-appellant who was
wearing a pair of short pants but naked from waist up, entered the bedroom of
private complainant, went on top of her, held her hands, removed her panty,
mashed her breasts and touched her sex organ. However, accused-appellant
saw Rossel peeping through the door and dismounted. He berated Rossel for
peeping and ordered him to go back to his room and to sleep. Accused-
appellant then left the room of the private complainant. The testimony of
private complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you
again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while
he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his
body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing
that you experienced from the hands of the accused was this that last time, the
one you narrated in November 1998?
A Yes, sir.[32]

On cross-examination, the private complainant testified, thus:

Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one
who entered was your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but
suddenly I felt that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your
legs, is that what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
 Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was
struggling to free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand
was holding your leg, is that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to
extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated
in part his sisters testimony. He testified on direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at
that date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa
was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you
stay the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he
laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie
Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you
see this before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder
sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to
the other room and slept, sir.[34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your
sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister
when you said the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you
were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what
you are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty
of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be
thirsty.
Q So---you said the accused was touching your sister. What part of her body was
touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand?
Your sisters body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that
what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not
correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
 Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]

In light of the evidence of the prosecution, there was no introduction of the

penis of accused-appellant into the aperture or within the pudendum of the
vagina of private complainant. Hence, accused-appellant is not criminally
liable for consummated rape. [36]

The issue that now comes to fore is whether or not accused-appellant is

guilty of consummated acts of lasciviousness defined in Article 336 of the
Revised Penal Code or attempted rape under Article 335 of the said Code, as
amended in relation to the last paragraph of Article 6 of the Revised Penal
Code. In light of the evidence on record, we believe that accused-appellant is
guilty of attempted rape and not of acts of lasciviousness.
Article 336 of the Revised Penal Code reads:

Art. 336. Acts of Lasciviousness.Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional. [37]

For an accused to be convicted of acts of lasciviousness, the prosecution

is burdened to prove the confluence of the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:

a. By using force or intimidation; or

b. When the offended party is deprived of reason or otherwise unconscious; or

c. When the offended party is under 12 years of age. [38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that

form of immorality which has relation to moral impurity; or that which is carried
on a wanton manner. [39]

The last paragraph of Article 6 of the Revised Penal Code reads:

There is an attempt when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous
desistance.

The essential elements of an attempted felony are as follows:

1. The offender commences the commission of the felony directly by overt acts;

2. He does not perform all the acts of execution which should produce the felony;

3. The offenders act be not stopped by his own spontaneous desistance;

4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance. [40]

The first requisite of an attempted felony consists of two elements,

namely:

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be
committed. [41]

An overt or external act is defined as some physical activity or deed,

indicating the intention to commit a particular crime, more than a mere
planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor
by the spontaneous desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. The raison detre for the law
[42]

requiring a direct overt act is that, in a majority of cases, the conduct of the
accused consisting merely of acts of preparation has never ceased to be
equivocal; and this is necessarily so, irrespective of his declared intent. It is
that quality of being equivocal that must be lacking before the act becomes
one which may be said to be a commencement of the commission of the
crime, or an overt act or before any fragment of the crime itself has been
committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is [43]

necessary that the overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the first or some
subsequent step in a direct movement towards the commission of the offense
after the preparations are made. The act done need not constitute the last
[44]

proximate one for completion. It is necessary, however, that the attempt must
have a causal relation to the intended crime. In the words of Viada, the overt
[45]

acts must have an immediate and necessary relation to the offense. [46]

Acts constitutive of an attempt to commit a felony should be distinguished

from preparatory acts which consist of devising means or measures
necessary for accomplishment of a desired object or end. One perpetrating
[47]
preparatory acts is not guilty of an attempt to commit a felony. However, if the
preparatory acts constitute a consummated felony under the law, the
malefactor is guilty of such consummated offense. The Supreme Court of
[48]

Spain, in its decision of March 21, 1892, declared that for overt acts to
constitute an attempted offense, it is necessary that their objective be known
and established or such that acts be of such nature that they themselves
should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for designation of the offense. [49]

There is persuasive authority that in offenses not consummated as the

material damage is wanting, the nature of the action intended (accion fin)
cannot exactly be ascertained but the same must be inferred from the nature
of the acts executed (accion medio). Hence, it is necessary that the acts of
[50]

the accused must be such that, by their nature, by the facts to which they are
related, by circumstances of the persons performing the same, and by the
things connected therewith, that they are aimed at the consummation of the
offense. This Court emphasized in People vs. Lamahang that: [51]

The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to cause a particular injury. [52]

If the malefactor does not perform all the acts of execution by reason of
his spontaneous desistance, he is not guilty of an attempted felony. The law [53]

does not punish him for his attempt to commit a felony. The rationale of the
[54]

law, as explained by Viada:

La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el delito
por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el borde del
abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia
un perdon que concede la Ley al arrepentimiento voluntario. [55]

As aptly elaborated on by Wharton:

First, the character of an attempt is lost when its execution is voluntarily

abandoned. There is no conceivable overt act to which the abandoned purpose could
be attached. Secondly, the policy of the law requires that the offender, so long as he is
capable of arresting an evil plan, should be encouraged to do so, by saving him
harmless in case of such retreat before it is possible for any evil consequences to
ensue.Neither society, nor any private person, has been injured by his act. There is no
damage, therefore, to redress. To punish him after retreat and abandonment would be
to destroy the motive for retreat and abandonment.[56]

It must be borne in mind, however, that the spontaneous desistance of a

malefactor exempts him from criminal liability for the intended crime but it
does not exempt him from the crime committed by him before his
desistance. [57]

In light of the facts established by the prosecution, we believe that

accused-appellant intended to have carnal knowledge of private
complainant. The overt acts of accused-appellant proven by the prosecution
were not mere preparatory acts. By the series of his overt acts, accused-
appellant had commenced the execution of rape which, if not for his
spontaneous desistance, will ripen into the crime of rape. Although accused-
appellant desisted from performing all the acts of execution however his
desistance was not spontaneous as he was impelled to do so only because of
the sudden and unexpected arrival of Rossel. Hence, accused-appellant is
guilty only of attempted rape. In a case of similar factual backdrop as this
[58]

case, we held:

Applying the foregoing jurisprudence and taking into account Article 6 of the Revised
Penal Code, the appellant can only be convicted of attempted rape. He commenced
the commission of rape by removing his clothes, undressing and kissing his victim
and lying on top of her. However, he failed to perform all the acts of execution which
should produce the crime of rape by reason of a cause other than his own spontaneous
desistance, i.e., by the timely arrival of the victims brother. Thus, his penis merely
touched Mary Joys private organ. Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be imposed on him should be an
indeterminate prison term of six (6) years of prision correccional as minimum to
twelve (12) years of prision mayor as maximum.

The penalty for attempted rape is prision mayor which is two degrees
lower than reclusion perpetua. Accused-appellant should be meted an
[59]

indeterminate penalty the minimum of which should be taken from prision

correccional which has a range of from six months and one day to six years
and the maximum of which shall be taken from the medium period of prision
mayor which has a range of from eight years and one day to ten years,
without any modifying circumstance. Accused-appellant is also liable to
private complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial
Court of Manila, Branch 54, is SET ASIDE. Another judgment is hereby
rendered as follows:
 1. In Criminal Case No. 99-171390, accused-appellant is hereby found
guilty beyond reasonable doubt of simple rape under Article 335 of the
Revised Penal Code as amended and is hereby meted the penalty
of reclusion perpetua. Accused-appellant is also hereby ordered to pay private
complainant Analia Orillosa the amounts of P50,000.00 by way of civil
indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found
guilty of attempted rape under Article 335 of the Revised Penal Code as
amended in relation to Article 6 of the said Code and is hereby meted an
indeterminate penalty of from six years of prision correccional in its maximum
period, as minimum to ten years of prision mayor in its medium period, as
maximum. Accused-appellant is hereby ordered to pay private complainant
Analia Orillosa the amount of P25,000.00 by way of moral damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant
is hereby found guilty beyond reasonable doubt of two counts of simple rape,
defined in Article 335 of the Revised Penal Code as amended and is hereby
meted the penalty of reclusion perpetua for each count. Accused-appellant is
hereby ordered to pay to private complainant Analia Orillosa the amount
of P50,000.00 by way of civil indemnity and the amount of P50,000.00 by way
of moral damages for each count, or a total amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, and Azcuna, JJ.,concur.
Bellosillo, J., on leave.