A.M. No.

MTJ-00-1286

January 21, 2002

NELLY J. TE, complainant, vs. JUDGE ROMEO V. PEREZ, Municipal Trial Court, Bauang, La Union, respondent. YNARES-SANTIAGO, J.: In a Sworn Letter-Complaint dated July 21, 7, 19971 filed with the Office of the Court Administrator, Nely J. Te charged Judge Romeo V. Perez, Presiding Judge of the Municipal Trial Court of Bauang, La Union with Bias and Partiality relative to Criminal Case No. 7258 for Rape entitled "People v. Perry Meixsel." Complainant who is the rape victim of the aforecited criminal case alleged that respondent Judge ordered the issuance of a Warrant of Arrest with "No Bail" against accused Perry Meixsel, a foreign national. Said accused was arrested and detained at the Baguio City Jail but was released the following day to his lawyer instead of being transferred and committed to the law enforcers of Bauang, La Union where the case was filed. Complainant further alleged that on July 9, 1997 respondent Judge issued another Warrant of Arrest fixing the amount of the bail bond at P200,000.00 without the knowledge of the Fiscal in Bauang, La Union. Upon motion of the defense, the bail bond was reduced to P75,000.00 and the accused was released on bail without the required preliminary hearing. Complainant expressed apprehension that such actuation of respondent Judge might jeopardize the case as the accused is free to leave the country. Upon referral2 by the OCA to respondent judge, the latter averred that he committed an error in issuing the order for issuance of a Warrant of Arrest with "No Bail" because upon review of the records and after consulting the 1996 Bail Bond Guide issued by the Department of Justice, he found out that the crime of Rape was bailable as a matter of right. According to him, the 1996 Bail Bond Guide provides that the crime of Rape is not bailable if committed with the use of a deadly weapon, or by two or more men or the victim becomes insane or a homicide is committed by reason or on occasion thereof,3 and if committed under circumstances not mentioned above, the bail is P200,000.00. To rectify the error, he issued another order fixing the bail bond at P200,000.00. When counsel for the accused filed a motion to reduce bail bond from P200,000.00 to P75,000.00 without any opposition from the prosecution, he granted the same. Respondent judge contended that complainant filed the criminal case in order to extort money from the accused who is a foreigner. He maintains that he is correct in ordering the dismissal of the case because when the case was formally filed with the RTC of Bauang, La Union, Branch 67, the same was dismissed for failure to prosecute. In a Resolution dated July 5, 20004 the court resolved to a.] docket the case as a regular administrative proceeding; and b.] require the parties to manifest if they are willing to submit the case for resolution on the basis of the pleadings already filed. Respondent judge subsequently manifested his willingness to submit the case for resolution on the basis of the pleadings already filed.5 Noting6 that complainant failed to similarly manifest her willingness to submit the case for resolution on the basis of the pleadings filed and that the period had already lapsed, the Court issued a Resolution dated August 29, 20017 dispensing with the filing thereof. Upon referral of the case for evaluation, report and recommendation, the OCA recommended, among others, that respondent judge be ordered to pay a fine of Five Thousand Pesos (P5,000.00) with a warning that a repetition of the same or similar offenses will be dealt with more severely for the following reasons:
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Respondent Judge's explanation is utterly unacceptable and speaks poorly of his competence in applying the law and jurisprudence on the matter. Contrary to his stance, whether an offense charged is bailable or not is never dictated by the 1996 Bail Bond Guide but is governed by the principle laid down in Section 3 of Rule 114 of the Rules of Court which provides: Sec. 3. Bail, a matter of right; exception. All persons in custody shall before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time for the application for bail, is punishable by reclusion perpetua, when the evidence of guilt is strong. Section 5 of Rule 114 of the Rules of Court further states thus: Sec. 5. Burden of proof in bail application. At the hearing of an application for admission to bail filed by any person who is in custody for the commission of an offense punishable by reclusion perpetua or death, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may recall the witness for additional examination unless the witness is dead, outside of the of the Philippines or otherwise unable to testify. Hence, the rule is explicit that when an accused is charged with a serious offense punishable with reclusion perpetua, such as rape, bail may be granted only after a motion for that purpose has been filed by the accused and a hearing thereon conducted by a judge to determine whether or not the prosecution's evidence of guilt is strong.8 Applying the above-quoted rules, respondent Judge clearly acted irregularly when he motu proprio fixed and granted bail and subsequently reduced the amount thereof, in both instances, without hearing the side of the prosecution. Irrespective of his opinion that the evidence of guilt against the accused is not strong, the law and settled jurisprudence demands that a hearing be conducted before bail could be fixed for the temporary release of the accused, if bail is at all justified. And as held in Lardizabal v. Reyes, supra While the Supreme Court does not require perfection and infallibility, it reasonably expects a faithful and intelligent discharge of duty by those who are selected to fill the position of administrators of justice. On ascribing bias and partiality on the same act of respondent Judge of granting bail after previously recommending no bail, said accusation is without basis. As held in Castaos v. Escao, Jr.,9 to wit: A judge cannot be held administratively liable for an erroneous ruling on first impression, and malice cannot be inferred from his having rendered a decision rectifying an earlier impression without proof beyond of a conscious and deliberate intent on his part to commit an injustice by such acts. We adopt the findings and recommendation of the Office of the Court Administrator but find the recommended penalty not commensurate to the misdeed committed. Respondent Judge should not have granted bail simply on the failure of the prosecution to prove that the evidence of guilt of the accused was strong but should have endeavored to determine the existence of such evidence.10 Under the present rules, a hearing is required in granting bail whether it is a matter of right or discretion.11 A motion to reduce the amount of bail likewise requires a hearing before it is granted in order to afford the prosecution the chance to oppose it.12 In this jurisdiction, whether bail is a matter of right or discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal, or at least he

must be asked for his recommendation.13 If the prosecution refuses to adduce evidence or fails to interpose an objection, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions.14 In fact, even in cases where there is no petition for bail, a hearing should still be held.15 In Narciso v. Sta. Romana-Cruz,16 we ruled: "[J]urisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution in such cases is never a basis for the grant of bail in such cases for the judge has no right to presume that the prosecutor knows what he is doing on account of the familiarity with the case. 'Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty is will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor.'"17 To do away with the requisite bail hearing "is to dispense with this time-tested safeguard against arbitrariness."18 It must always be remembered that imperative justice requires the proper observance of indispensable technicalities precisely designed to ensure its proper dispensation.19 We reiterate the following duties of judges in case an application for bail is filed: 1. In all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation;20 2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion;21 3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; and 4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond.22 Otherwise the bail should be denied.23 With such clear procedural guidelines now incorporated in the Rules of Court, judges have been enjoined to study them well and be guided accordingly. Concededly, judges can not be faulted for honest lapses in judgment but this defense has become shopworn from overuse. Thus, we put our foot down in declaring that the failure to give notice to the prosecution before granting the application for bail or the granting thereof to a person charged with a capital offense without conducting the required hearing is guilty of ignorance or incompetence, the gravity of which can not be excused by any protestation of good faith or excusable negligence.24 While we do not expect judges to have an encyclopedic recollection of applicable laws and jurisprudence in the discharge of their responsibilities, they nevertheless have the bounden duty to keep abreast with the law and the changes therein as well as the decisions of this Court.25 Indeed, a judge . . . owes it to the public and to the legal profession to know the factual basis of the complaint and the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than a cursory acquaintance with the statutes and procedural rules. Party-litigants will have a greater faith in the administration of justice if judges are not cursorily excused of apparent deficiency in the analysis of the facts of the case and in the grasp of legal principles. For service in the judiciary means a continuous study and research on the law from beginning to end. A member of the bench must continuously keep himself
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abreast of legal and jurisprudential developments because the learning process in law never ceases.26 In this case, there is no question that respondent judge's disregard of an established rule of law which amounts to gross ignorance of the law subjects him to disciplinary action.27 WHEREFORE, respondent Judge Romeo V. Perez is REPRIMANDED and FINED in the amount of Ten Thousand Pesos (P10,000.00) for Gross Ignorance of the Law. He is further STERNLY WARNED that the commission of similar acts in the future shall be dealt with more severely by this Court. SO ORDERED. [A.M. No. MTJ-99-1205. November 29, 2000] OFELIA DIRECTO, complainant, vs. JUDGE FABIAN M. BAUTISTA, respondent. RESOLUTION MELO, J.: On December 24, 1996 at around 8 oclock in the evening, Baltazar Directo was shot to death. The police of the Municipality of Santol, La Union arrested Herminigildo Acosta, Jaime Acosta, and Maximino Acosta in connection with Baltazars death and filed a criminal complaint against the three for the crime of murder. The Municipality of Santol having no public prosecutor of its own, Judge Fabian M. Bautista, Acting Municipal Trial Court Judge conducted a preliminary investigation based on the criminal complaint. Thereafter, Judge Bautista issued an order dated January 10, 1997 stating: After conducting the preliminary examination in writing and under oath of the complainant and his/her witnesses in the above-entitled case, the Court finds reasonable ground to believe the crime charged has been committed and all the accused are probably guilty thereof. However, inasmuch as the evidence for the conspiracy angle which implicated Jaime & Maximino Acosta to the crime charged for which Herminigildo is the alleged triggerman is not strong, and further because there is practically nothing to support the qualifying circumstance of evident premeditation, and that the evidence of the qualifying circumstance of treachery is not strong, this Court has decided to grant to the accused their constitutional right to bail. WHEREFORE, let a warrant be issued for the arrest of all the accused who enjoy their provisional liberty by posting a bail bond in the amount of P60,000.00 each. It is in relation with this order that Ofelia Directo, private complainant in the criminal case and wife of the victim, filed a letter-complaint with the Court Administrator against respondent on May 6, 1997 for allegedly failing to follow the procedural requirements in the allowance of bail. She alleged that respondent judge granted bail to the accused and further reduced it without notice or hearing. Respondent comments, in justification of his actions, that an application for admission to bail is filed only in instances when the investigating judge issues an order finding probable cause against the accused for a capital offense, and when there was initially a denial of bail. Such petition for bail necessitates a hearing. In the particular case at hand, however, respondent judge contended that there was no need for a hearing in order to give the prosecution a chance to prove that the evidence of guilt on the charge of murder was strong, due to the earlier determination made by the

investigating judge that in fact the evidence of guilt was not strong. In view of this finding, bail was granted for all the accused and since there was no petition for bail filed, no hearing was required or had. The Court agrees with complainant that respondent judge lapsed into procedural error in granting bail to the accused. When a preliminary investigation is conducted by a municipal trial court judge, he is obligated, upon conclusion of the preliminary investigation, to transmit to the provincial or city fiscal, for appropriate action, the resolution of the case which must contain a brief statement of findings of fact and of the law supporting said resolution. The resolution shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused; (d) the order of release of the accused and cancellation of his bail bond, if the resolution is for the dismissal of the complaint (Section 5, Rule 112, Rules of Court). In the case at bar, instead of waiting for the conclusion of the preliminary investigation, respondent judge issued a warrant for the arrest of the accused immediately after his determination of existence of probable cause. In the same order, he also granted the accused bail in the amount of P60,000.00 each, later reducing this to P30,000.00 over the objection of private complainant. These pronouncements should have been included in the resolution of the case and not in a separate order. Further, respondent judge cannot motu proprio grant bail. Although the Rules of Court authorize the investigating judge to determine the amount of bail, such authority does not include the outright granting of bail without a preliminary hearing on the matter, more so in a case where the crime charged is murder, a capital offense punishable by reclusion perpetua to death (Article 248, Revised Penal Code). In cases where the penalty for the crime committed is that of death, reclusion perpetua, or life imprisonment, when evidence of guilt is strong, bail becomes a matter of discretion (Section 7, Rule 114, Rules of Court). When bail is discretionary, a hearing is mandatory to determine whether the evidence of guilt is strong before bail can be granted to the accused (Bantuas vs. Pangadapun, 292 SCRA 622 [1998]; Aguirre vs. Belmonte, 237 SCRA 778 [1994]; Baylon vs. Judge Sison, 243 SCRA 284 [1995]; Cortes vs. Agcaoili, 294 SCRA 423 [1998]). Respondent judge contends that even if the crime charged was a capital offense, the evidence of guilt was not strong. The accused were, therefore, entitled to their constitutional right to bail. Respondent judge is mistaken. While it may be true that the determination of whether or not the evidence of guilt is strong is a matter of judicial discretion (Aleria, Jr. vs. Velez, 298 SCRA 611 [1998]), this discretion lies NOT in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the weight of the prosecutions evidence of guilt against the accused (Bantuas vs. Pangadapun, supra; Gimeno vs. Arcueno, Sr., 250 SCRA 376 [1995]). Respondent judge also contends that there was no longer any need for a hearing as there was no petition for bail. Again, this contention is wrong. Even in cases where there is no petition for bail, a hearing should still be held. This hearing on the petition for bail is separate and distinct from the initial hearing to determine probable cause. In the determination of probable cause, the court merely ascertains whether or not there is sufficient ground to engender a well-founded belief that a crime has indeed been committed and that respondents are probably guilty of such crime (People vs. Dacudao, 170 SCRA 489 [1989]). Whether or not the evidence of guilt is strong still has to be established. The prosecution must be given a chance to prove the strength or weakness of its evidence (People vs. Dacudao, supra; Baylon vs. Judge Sison, supra); otherwise, a violation of due process occurs (People vs. Mayor Pablo Sola, 103 SCRA 393 [1981]; People vs. San Diego, 26 SCRA 522 [1968]). As aptly stated in the case of People vs. Mayor Pablo Sola, supra, citing the words of Justice Cardozo in the case of Snyder vs. Massachusetts (291 U.S. 97, 122 [1933]):
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Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained til it is narrowed to a filament. We are to keep the balance true. This norm which is of the very essence of due process as the embodiment of justice requires that the prosecution be given the opportunity to prove that there is strong evidence of guilt. (At p. 400.) Every judge should be faithful to the law and maintain professional competence (Rule 3.01, Code of Judicial Conduct). The failure of a judge to conduct the hearing required prior to the grant of bail in capital offenses is inexcusable and reflects gross ignorance of the law and a cavalier disregard of its requirement (Bantuas vs. Pangadapun, supra); worse even when bail is granted to the accused despite the absence of a petition for bail (Delos SantosReyes vs. Judge Montesa, 247 SCRA 85 [1995]). Respondent judges actions were inconsistent with the Code of Judicial Conduct which requires judges to act with competence, integrity and independence (Rule 1.01, Code of Judicial Conduct; Pico vs. Judge Combong, Jr., 215 SCRA 421 [1992]). WHEREFORE, respondent Judge Fabian M. Bautista is hereby found guilty of ignorance of the law, and he is consequently ordered to pay a fine of Five Thousand Pesos (P5,000.00) with a warning that a future infraction will merit a severe chastisement of the Court. SO ORDERED. G.R. No. 134504 March 17, 2000 JOSELITO V. NARCISO, petitioner, vs. FLOR MARIE STA. ROMANA-CRUZ, respondent.

PANGANIBAN, J.: When the penalty prescribed by law is death, reclusion perpetua or life imprisonment, a hearing must be conducted by the trial judge before bail can be granted to the accused. Absent such hearing, the order granting bail is void for having been issued with grave abuse of discretion. In parricide, the accused cannot be considered an offended party just because he was married to the deceased. In the interest of justice and in view of the peculiar circumstances of this case, the sister of the victim may be deemed to be an "offended party"; hence, she has the legal personality to challenge the void order of the trial court. The Case We invoke the foregoing principles in rejecting the Petition for Review on Certiorari before us, assailing the February 26, 1998 Decision 1 and the June 29, 1998 Resolution of the Court of Appeals (CA), 2 which reversed and set aside the Order of Executive Judge Pedro T. Santiago of the Regional Trial Court (RTC) of Quezon City, Branch 101, in Criminal Case No. Q-91-24179 entitled "People of the Philippines v. Joselito V. Narciso." The dispositive portion of the challenged CA Decision reads: WHEREFORE, the petition for certiorari is hereby GRANTED and the order granting bail is annulled and set aside. 3 The assailed Resolution, on the other hand, denied petitioner's Motion for Reconsideration.

The full text of the August 3, 1992 RTC Order, which the Court of Appeals annulled and set aside, reads as follows: Accused who is present filed thru counsel a Motion to Allow Accused Joselito V. Narciso to Post Bail. Considering that the Presiding Judge of Branch 83 who is hearing this case is on leave and the Pairing Judge Honorable Salvador Ceguerra is no longer within the premises, there being no objection by the City Prosecutor Candido Rivera to the accused posting a cashbond of P150,000.00, the undersigned in his capacity as Executive Judge hereby approves the same. 4 The Facts of the Case The undisputed antecedents of the case were summarized by the Court of Appeals as follows: 1) After conducting a preliminary investigation on the death of Corazon Sta. Romana-Narciso, wife of Joselito Narciso, Asst. City Prosecutor Myrna Dimaranan Vidal of Quezon City recommended and thereafter filed, the information for parricide against Joselito Narciso on November 13, 1991, with the Regional Trial Court of Quezon City, docketed therein as Criminal Case No. Q-91-24179. 2) Joselito Narciso thereafter asked for a review of the prosecutor's resolution [before] the Department of Justice (DOJ) which was however denied. Joselito Narciso moved for reconsideration, which was still denied by the DOJ. 3) Failing before DOJ, the accused on February 6, 1992, filed in Criminal Case No. Q-91-24179 an "Omnibus Motion for Reinvestigation and to Lift the Warrant of Arrest". The Motion was granted and the case was set for reinvestigation by another prosecutor. 4) Assistant Prosecutor Lydia A. Navarro, to whom the case was assigned for reinvestigation, found no reason to disturb the findings of the previous prosecutor and recommended the remand of the case to the court for arraignment and trial. 5) On August 3, 1992, accused filed an "Urgent Ex-Parte (Ex Abundanti Cautela) to Allow Accused Joselito Narciso to Post Bail". The Public Prosecutor registered no objection and said motion was granted on the same day, allowing accused to post bail at P150,000.00. 6) On August 14, 1992, the private prosecutor representing private complainant Flor Marie Sta. Romana-Cruz, a sister of accused's deceased wife, filed an "Urgent Motion to Lift Order Allowing Accused To Post Bail". 7) Accused objected to the aforesaid urgent motion by filing a "Motion to Expunge 1) Notice of Appearance of the Private Prosecutor and the 2) Urgent Motion to Lift Order Allowing Accused to Post Bail". 8) Arraignment was conducted on September 14, 1992 and the case was set for hearing on November 9, 16, 23, December 2, 9, 1992, January 6, 13, 20, 27, 1993, February 3, 7, 10 and 24 1993. 9) On October 15, 1992, private complainant through counsel filed her opposition to the motion to expunge [filed by] accused. 10). On November 3, 1992 private complainant moved for the postponement of the trials set on November 9, 16 and 23 and the subsequent hearings thereon pending the resolution of their "Urgent Motion to Lift Order Allowing Accused To Post Bail".

11) On November 9, 1992, the court issued the first assailed order stating therein to wit: ORDER Counsel for the accused, upon being informed of the motion for postponement dated November 3, 1992 filed by the private complainant, through counsel, offered no objection to the cancellation of today's trial but not the trial set on November 16, 23 and December 2 and 9, 1992 for the reason that the trial can proceed independently of the pending "Urgent Motion to Lift Order Allowing the Accused to Post Bail". WHEREFORE, the trial set for today is hereby cancelled and re-set on November 16, 1992 at 10:30 o'clock in the morning, as previously scheduled. SO ORDERED. 12) On November 16, 1992, the court cancelled the hearing upon motion of the public prosecutor because no prosecution witness was available. 13) [I]n the hearing of November 23, 1992, the private prosecutor again moved for postponement because of the pendency of his "Motion to Lift Order Allowing Accused to Post Bail". On the same date, the court issued the second assailed order which reads: ORDER On motion of the Asst. City Prosecutor, for the reason that there is no showing in the record that the private complainant was duly notified, hence, there is no available witness this morning, the trial set for today is hereby cancelled and reset on December 2 and 9, 1992 both at 10:30 o'clock in the morning, as previously scheduled. Let a subpoena be issued to complainant Corazon [sic] Sta. Romana-Narciso, the same to be served personally by the Deputy Sheriff/Process server of this Court. The accused is notified of this Order in open court. SO ORDERED. Not obtaining any resolution on her "Motion To Lift Order Allowing Accused to Post Bail", private complainant filed this petition [before the CA]. As earlier mentioned, the Court of Appeals granted private respondent's Petition for Certiorari. Hence, this recourse to us via Rule 45 of the Rules of Court. 5 The Issues Petitioner imputes to the Court of Appeals this alleged error: The Respondent Court of Appeals has erroneously decided questions of substance, in a manner not in accord with law, the Rules of Court and applicable jurisprudence, as exemplified in the decisions of this Honorable Court, when it reversed and set aside the order of the Regional Trial Court of Quezon City which granted the petitioner his constitutional right to bail, considering the absence of strong evidence or proof of his guilt, and more especially when the public prosecutors, who have direct control of the proceedings and after assessment of the evidence, have themselves recommended the grant of bail. 6 Respondent, on the other hand, poses the following issues: 7
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Whether or not the Respondent Court of Appeals correctly ruled that the Order of the Regional Trial Court which granted bail to the petitioner is substantially and procedurally infirm notwithstanding the absence of any opposition from the public prosecutor. Whether or not the private respondent has the legal personality to intervene in the present criminal case. To resolve this case, the Court believes that two issues must be taken up; namely, (1) the validity of the grant of bail and (2) private respondent's standing to file the Petition before the CA. The Court's Ruling The Petition is devoid of merit. First Issue: Validity of the Grant of Bail Sec. 13, Article III of the Constitution, provides: "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Furthermore, Section 7, Article 114 of the Rules of Court, as amended, also provides: "No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution." Although petitioner was charged with parricide which is punishable with reclusion perpetua, he argued before the CA that he was entitled to bail because the evidence of his guilt was not strong. He contended that the prosecutor's conformity to his Motion for Bail was tantamount to a finding that the prosecution evidence against him was not strong. The Court of Appeals ruled, however, that there was no basis for such finding, since no hearing had been conducted on the application for bail summary or otherwise. The appellate court found that only ten minutes had elapsed between the filing of the Motion by the accused and the Order granting bail, a lapse of time that could not be deemed sufficient for the trial court to receive and evaluate any evidence. We agree with the CA. Stressing in Basco v. Rapatalo 8 that the judge had the duty to determine whether the evidence of guilt was strong, the Court held: When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. "This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal." Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. "A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable
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and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination." If a party is denied the opportunity to be heard, there would be a violation of procedural due process. (Emphasis supplied.) Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases, for the judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case. "Said reasoning is tantamount to ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. Judicial discretion is the domain of the judge before whom the petition for provisional liberty will be decided. The mandated duty to exercise discretion has never been reposed upon the prosecutor. 9 Imposed in Baylon v. Sison 10 was this mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail. We quote below the pertinent portion of the Decision therein: The importance of a hearing has been emphasized in not a few cases wherein the Court ruled that even if the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused. In Gimeno v. Arcueno Sr., 11 the Court also held: The grant of bail is a matter of right except in cases involving capital offenses when the matter is left to the sound discretion of the court. That discretion lies, not in the determination whether or not a hearing should be held but in the appreciation and evaluation of the prosecution's evidence of guilt against the accused. . . . A hearing is plainly indispensable before a judge can aptly be said to be in a position to determine whether the evidence for the prosecution is weak or strong. And in Concerned Citizens v. Elma, 12 the Court ruled: It is true that the weight of the evidence adduced is addressed to the sound discretion of the court. However, such discretion may only be exercised after the hearing called to ascertain the degree of guilt of the accused for the purpose of determining whether or not he should be granted liberty. Basco v. Rapatalo 13 summarized several cases 14 that emphasized the mandatory character of a hearing in a petition for bail in a capital case. It enunciated the following duties of the trial judge in such petition. (1) Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court as amended; (2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion (Sections 7 and 8, supra);

(3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution (Baylon v. Sison, supra); (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond. (Section 19, supra). Otherwise, petition should be denied. The Court added: "The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof." Additionally, the court's grant or refuse of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail. 15 Clearly, the grant of bail by Executive Judge Santiago was laced with grave abuse of discretion and the Court of Appeals was correct in reversing him. Second Issue: Respondent's Standing to File the Petition Petitioner attacks respondent's legal standing to file the Petition for Certiorari before the appellate court, maintaining that only the public prosecutor or the solicitor general may challenge the assailed Order. He invokes People v. Dacudao 16 which ruled: . . . A private prosecutor in a criminal case has no authority to act for the People of the Philippines before this Court. It is the Government's counsel, the Solicitor General who appears in criminal cases or incidents before the Supreme Court. At the very least, the Provincial Fiscal himself, with the conformity of the Solicitor General, should have raised the issue (of whether or not the prosecution was deprived of procedural due process on account of the grant of bail to the accused without any hearing on the motion for bail) before us, instead of the private prosecutor with the conformity of the Assistant Provincial Fiscal of Cebu. He also cites Republic v. Partisala 17 which held as follows: We make it known that only the Solicitor General can bring or defend actions on behalf of the Republic of the Philippines. Henceforth actions filed in the name of the Republic of the Philippines if not initiated by the Solicitor General will be summarily dismissed. Citing the "ends of substantial justice," People v. Calo, 18 however, provided an exception to the above doctrines in this manner: While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceedings pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adao's order granting bail to the alleged murderers of his (private petitioner's) father.

In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus: Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents have sufficient interest and personality as "person(s) aggrieved" by petitioner judge's ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently, in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal interpretation of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband. (Id., p. 699) The ends of substantial justice indeed require the affirmation of the appellate court's ruling on this point. Clearly, the assailed Order of Judge Santiago was issued in grave abuse of discretion amounting to lack of jurisdiction. A void order is no order at all. 19 It cannot confer any right or be the source of any relief. This Court is not merely a court of law; it is likewise a court of justice. To rule otherwise would leave the private respondent without any recourse to rectify the public injustice brought about by the trial court's Order, leaving her with only the standing to file administrative charges for ignorance of the law against the judge and the prosecutor. A party cannot be left without recourse to address a substantive issue in law. Moreover, we agree with the Office of the Solicitor General that "it is too late in the day for the petitioner to challenge the legal personality of private respondent considering that it was never disputed by [him] during the preliminary investigation of the case, in his appeal to the Department of Justice and during the reinvestigation of the case." 20 Corollary to the question of standing, petitioner submits that even if the exception were made to apply, private respondent is not an "offended party" who is granted the right to challenge the assailed RTC Order. He maintains that only the compulsory heirs of the deceased, who are the accused himself and his minor child, may file the instant action. We disagree. It should be remembered that the crime charged against the private respondent is parricide; hence, the accused cannot be regarded as an offended party. That would be a contradiction in terms and an absurdity in fact. Nor can one expect the minor child to think and to act for himself. Hence, we rule that in view of the peculiar circumstances of this case, the sister of the deceased is a proper party-litigant who is akin to the "offended party," she being a closer relative of the deceased. There is no closer kin who may be expected to take up the cudgels of justice for the deceased. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioner. SO ORDERED.1wphi1.nt A.M. No. RTJ-98-1407 July 20, 1998 Sinal Bantuas, Yusop Bantuas, Saidalawi Bantuas, and Monora B. Madcasim, complainants, vs.Judge Yusoph K. Pangadapun and Judge Santos B. Adiong, respondents.

MARTINEZ, J.: In a verified complaint dated October 17, 1995 1 Judge Yusoph K. Pangadapun, Regional Trial Court, Branch 10, Marawi City in his capacity as Acting Presiding Judge, RTC, Branch 11, Malabang, Lanao del Sur and Judge Santos B. Adiong, RTC, Branch 8, Marawi City were changed with alleged gross misconduct relative to the granting of bail to the accused in Criminal Case No. 11-340 entitled "People vs. Nixon Macapado et. al." for Murder. The complainants herein are relatives of the late Bohare Bantuas, who was shot to death allegedly by the accused in Criminal Case No. 11-340 filed before the sala of respondent Judge Pangadapun. By virtue of the warrant of arrest issued against the accused in the above-mentioned case, accused Nixon Macapado was arrested and detained on August 21, 1994. Complainants allege that after the arrest of the accused the subject criminal case was not heard and no notice of hearing nor subpoenas were issued in connection therewith. They claim that the acused was allowed to post bail without the benefit of a hearing in the amount of P40,000.00 as fixed by respondent judge Yusoph K. Pangadapun in his Order dated April 7, 1995 2 granting the Urgent Motion to Fix Bail 3 filed by accused's counsel. They further asseverate that in order to rectify his unprocedural and unjustified act of fixing bail in a capital offense without a hearing, respondent Judge Pangadapun revoked and set aside the questionable order above-cited by issuing on July 29, 1995 another order to that effect. 4 The case was calendared for hearing twice, but nothing was done about the case because the accused had already been released on bail. Complainants likewise implicate respondent Judge Adiong in this alleged anomalous granting of bail to the accused. According to the complainants, Judge Adiong ordered the release of accused Nixon Macapado on July 18, 1995 5 on the basis of a defective property bond posted by bondsman Hadji Mohammad Mangondacan. Upon verification from the office of the Register of Deeds, complainants found out that the property bond which was approved and accepted by respondent Judge Adiong, was not filed and duly registered in accordance with the prescribed form as there was no description of the area, no TCT number and no current assessed value of the real property involved. In addition, the property bond was not filed with the Register of Deeds for proper annotation. Complainants further discovered that the property was already subject of and used as bond in Civil Case No. RTC-292-90, Regional Trial Court, Branch 10, Marawi City, Lanao del Sur. In his Comment dated March 14, 1996, 6 respondent Judge Yusoph K. Pangadapun admitted that he issued the Order dated April 7, 1995 granting the Urgent Motion to Fix Bail filed by accused Nixon Macapado through counsel without any hearing, on the strength of the representation of Provincial Prosecutor Pacaambung Macabando, who allegedly did not offer any objection in so far as Nixon Macapado was concerned. He explained, however, that said order was timely revoked by another order which he issued on July 19, 1995, before the accused was actually released from detention on July 29, 1995 as certified 7 by Carum Mamarinta Mauna, Warden of the Marawi City Jail where accused was detained. He added that his revocatory order was made while accused Nixon Macapado was still under detention at the City Jail, before the order of release of respondent Judge Adiong on July 28, 1995 and also before the accused's actual release on July 29, 1995. Respondent Judge Santos B. Adiong, in his Comment, 8 admitted to having acted on the bail bond papers of accused in his capacity as Vice Executive Judge and in the absence of Executive Judge Yusoph K. Pangadapun who was out of town at that time. He claimed that, on the basis of the Order dated April 7, 1995 of Judge Pangadapun
7

fixing the bail at P40,000.00 and considering that the supporting papers presented to him appeared to be in order, he approved the bail bond in his Order dated July 18, 1995. 9 Afterwards, he forwarded the bailbond papers to the RTC, Branch 11, Malabang, Lanao del Sur. This Court has time and again reiterated that a hearing is mandatory before bail can be granted to an accused who is charged with a capital offense. 10 The circumstances obtaining herein situate the case squarely within the ambit of the aforementioned procedural requirement. As clearly established by the facts of the case, accused Nixon Macapado was charged with Murder which is a capital offense. This notwithstanding, respondent Judge Pangadapun undertook to dispense with the requisite hearing on the basis of the nonobjection thereto of the Provincial Prosecutor, in contravention of the rules and applicable jurisprudence. True, the determination of the grant of bail is a matter of judicial discretion where the offense charged involves a capital offense. 11 However, the discretion of the court to grant bail in cases involving capital offenses lies not in the determination of whether or not a hearing should be held, but in the appreciation and evaluation of the weight of the prosecution's evidence of guilt against the accused. 12 Furthermore, admission to bail as a matter of discretion presupposes the exercise thereof in accordance with law and guided by the applicable legal principles. 13 Although the Provincial Prosecutor had interposed no objection to the grant of bail to the accused, respondent judge should have set the petition for bail for hearing. 14 If the prosecution refuses to adduce evidence or fails to interpose an objection to the motion for bail, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions. 15 For even the failure of the prosecution to interpose an objection to the grant of bail to the accused will not justify such grant without hearing. 16 Respondent Judge Pangadapun's explanation that his unwarranted and unprocedural grant of bail was timely remedied by his subsequent issuance of an order revoking and setting aside the former cannot be countenanced. It is well worth noting that the revocatory order was made only on July 19, 1995 or three months after the initially erroneous order of April 7, 1995 which was sought to be corrected. That he realized his fallacious granting of bail only after the lapse of three months is unfathomable. Fundamental knowledge of the law and a reasonable understanding of recent jurisprudence ought to have guarded respondent judge against the precipitate and unjustified granting of bail or should have at least prompted him to invalidate the same immediately thereafter. Whether the accused was still detained or not at the time the revocatory order was made is of no moment inasmuch as the administrative liability of respondent Judge Pangadapun had already attached when he granted bail to an accused charged with a capital offense. Neither will the seemingly conflicting claims of the parties with respect to the date of respondent Judge Adiong's release order negate the aforesaid culpability of respondent Judge Pangadapun. As found by the Office of the Court Administrator (OCA), in its Memorandum dated June 20, 1996, 17 "Judge Pangadapun's action shows lack of familiarity with the law and recent jurisprudence which undermines the public's confidence in the integrity of the courts." 18 To grant an application for bail and fix the amount thereof without a hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence. 19 Furthermore, the Court has held that the failure of the judge to conduct the hearing required prior to the grant of bail in capital offenses is inexcusable and reflects gross ignorance of the law and a cavalier disregard of its requirement. 20

The explanation of respondent Judge Adiong is likewise dubious and unavailing. His act of approving the bail bond papers of the accused, without verifying pertinent records when he had every opportunity and reasonable time to do so, can be characterized as negligent and imprudent. Had he thoroughly examined the order of his co-respondent Judge Pangadapun granting the accused's Motion for Bail, he would have noticed that the motion was approved without the required hearing. Likewise, he should have taken account of the fact that the same did not contain a summary of prosecutorial evidence. An order granting or refusing bail must contain a summary of the evidence offered by the prosecution. 21 Since the order had no recital of any evidence presented by the prosecution nor a pronouncement that the evidence of guilt of the accused was not strong, hence, the said order should not be sustained or given any semblance of validity. 22 Unfortunately, he carelessly disregarded the manifest irregularity contained therein and failed to realize that the bail bond should not have been approved in the first place. Indubitably, respondent judge showed poor judgment and gross ignorance of basic legal principles. 23 Respondent judge Adiong also did not contravene the allegation that the supporting papers far the bail bond were defective considering that the same were not in the prescribed form. Neither did he refute the allegation that the property offered was also being used as bond in another case. A judge cannot approve a bail band and order the release of an accused without the submission of a valid bail bond. 24 Accordingly, we find he respondent judges administratively liable for Ignorance of the Law relative to their actuations in the granting of bail to the accused in Criminal Case No. 11-340, RTC, Branch 11, Malabang, Lanao del Norte. In view of the foregoing, Judge Yusoph K. Pangadapun of RTC, Branch 10 Marawi City and Judge Santos B. Adiong of RTC, Branch 8, Marawi City are hereby ordered to pay a FINE of TWENTY THOUSAND PESOS (P20,000.00) each for ignorance of the Law. SO ORDERED. G.R. No. 137681 January 31, 2002

City, an information charging Dante Fajardo, Sr., Paterno de Castro, Filipina Fajardo Arce, and John Doe, as principals, and Pio Arce, as accomplice, with the murder of Numeriano Comia, Barangay Chairman, Batangas City.1 Subsequently, the case was assigned to respondent judges sala.2 On January 27, 1998, the trial court issued warrants of arrest for accused Fajardo Sr., de Castro, Arce, and John Doe.3 On March 10, 1998, the trial court granted an urgent motion of accused to suspend the efficacy of the warrants of arrest until further orders.4 On March 23, 1998, the prosecution filed a motion for reconsideration of the suspension order. On March 31, 1998, the trial court denied the motion for reconsideration.5 On December 3, 1998, the prosecution filed another motion to lift the suspension of the efficacy of the warrants of arrest.6 On December 4, 1998, the trial court granted the motion and issued warrants of arrest for all the accused without bail except for Pio Arce, whose bail was fixed at P200,000.00.7 On December 15, 1998, accused Dante Fajardo and Filipina Fajardo Arce, while still at large, filed with the trial court an urgent petition for bail with supplemental motion for reduction of bail for accused Pio Arce, Jr.8 On December 16, 1998, the trial court did not act on the petition because all the accused were still at large.9 On January 4, 1999, the accused filed with the trial court a motion for the resetting of the hearing of the urgent petition for bail to January 6, 1999.10 On the same day, the trial court ordered the setting of the urgent petition for bail "subject to the condition that the accused in this case will be voluntarily surrendering to the jurisdiction of the Court per their letter dated December 29, 1998."11 On January 6, 1999, the trial court issued an order allowing the accused pending the petition for bail to be in the custody of the PNP Criminal Detection Group, Camp Crame, Quezon City, instead of custody at the Batangas City Jail.12 On January 12, 1999, the prosecution filed with the trial court an omnibus motion to reconsider the order of custody of accused, to declare the proceedings on the bail hearing null and void, and to ask respondent judge to inhibit from hearing the petition for bail.13 On February 1, 1999, the trial court denied the prosecutions omnibus motion for lack of merit.14 On February 15, 1999, the trial court granted the accuseds petition for bail and fixed their bail at P200,000.00 each.15 On February 25, 1999, respondent judge inhibited himself from further acting on the criminal case.16 Hence, this petition.17

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. CONRADO R. ANTONA, in his capacity as presiding judge, Regional Trial Court, Branch 4, Batangas City, DANTE FAJARDO, SR., PATERNO DE CASTRO, FILIPINA FAJARDO ARCE, and JOHN DOE, as principals and PIO ARCE, as accomplice, respondents. PARDO, J.: The Case

The Issue The case is a special civil action of certiorari with temporary restraining order and change of venue assailing the orders of respondent Judge Conrado R. Antona, granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina Fajardo Arce, and John Doe as principals and Pio Arce as complice for murder filed with the Regional Trial Court, Batangas City, Branch 04. The Facts On January 19, 1998, Assistant City Prosecutor Leona Castor Castillo of Batangas filed with the Regional Trial Court, Batangas
8

The issue raised is whether the trial judge acted with grave abuse of discretion in granting bail to the accused. The Courts Ruling We grant the petition. The Revised Rules of Court provides "No person charged with a capital offense, or an offense punishable by reclusion perpetua or

life imprisonment when the evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal action."18 In such case, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong.19 At the hearing, the prosecution has the burden of showing that the evidence of guilt is strong.20 In this case, the trial court scheduled several hearing dates for the petition for bail. The prosecution asked for a reasonable opportunity to present evidence. However, the trial court denied postponement ostensibly to give the accused a speedy trial. Instead, the trial court proceeded to hear the evidence for the defense, despite vigorous objection from the prosecution. From the evidence presented by the defense, respondent judge observed that the crime charged occurred in broad daylight in a place with many stores where people usually converged. Also, accused was a well-known personality in the area. However, respondent judge failed to give the prosecution reasonable time to adduce evidence, and instead, denied postponement but allowed the accused to present witnesses, resulting in a denial to the prosecution of due process of law. A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements.21 "To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It is equally entitled as the accused to due process."22 The prosecution must be given ample opportunity to show that the evidence of guilt is strong.23 The prosecution must be accorded an opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt of the accused is strong.24 Indeed, the determination of whether the evidence of guilt is strong is a matter of judicial discretion.25 Though not absolute nor beyond control, the discretion of the trial court must be sound, and exercised within reasonable bounds.26 Discretion must be exercised regularly, legally and within the confines of procedural due process, that is, after the evaluation of the evidence submitted by the prosecution and the accused. Any order issued in the absence thereof is not a product of sound judicial discretion but of whim and caprice and outright arbitrariness.27 "[W]hether the motion for bail of a defendant who is in custody for a capital offense be resolved in a summary proceeding or in the course of a regular trial, the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. If, as in the criminal case involved in the instant special civil action, the prosecution should be denied such an opportunity, there would be a violation of procedural due process, and the order of the court granting bail should be considered void on that ground."28 Hence, in granting the petition for bail without giving the prosecution adequate opportunity to adduce evidence, the trial court acted with grave abuse of discretion. The Fallo WHEREFORE, the Court GRANTS the petition. The Court SETS ASIDE the orders granting bail to accused Dante Fajardo Sr., Paterno de Castro, Filipina Fajardo Arce, and Pio Arce in Criminal Case No. 9309, Regional Trial Court, Batangas City, Branch 04.
9

No costs. SO ORDERED. G.R. No. 129670 February 1, 2000

MANOLET O. LAVIDES, petitioner, vs. HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107, RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN ACT PROVIDING FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND OTHER PURPOSES). His arrest was made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been contacted by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman, Quezon City. Apparently, this was not the first time the police received reports of petitioner's activities. An entrapment operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an information for violation of Art. III, 5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-9770550.1wphi1.nt On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of Adverse Resolution of the Above Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on Which He is Charged.1 On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant, Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it was alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual intercourse." No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases. On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that: 1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest having been made in accordance with the Rules. He must therefore remain under detention until further order of this Court; 2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following conditions:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; 3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning.2 On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the arraignment scheduled on May 23, 1997.3 Then on May 22, 1997, he filed a motion in which he prayed that the amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment.4 On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds, to quash the informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty to the charges against him and then ordered him released upon posting bail bonds in the total amount of P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997. The pre-trial conference was set on June 7, 1997. On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and maintaining the conditions set forth in its order of May 16, 1997, respectively. While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing the total number of cases against him to 12, which were all consolidated. On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads: WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),5 of the May 23 [should be May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.6 The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the approval of petitioner's bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were contrary to Art. III, 14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable."

With respect to the denial of petitioner's motion to quash the informations against him, the appellate court held that petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him. Hence this petition. Petitioner contends that the Court of Appeals erred7 1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds "shall be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact that he had already posted the bail bonds and had pleaded not guilty to all the offenses; 2. In not resolving the submission that the arraignment was void not only because it was made under compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary action but also because it emanated from a void Order; 3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition for certiorari; and 4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section 5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse allegedly committed against each private complainant by the petitioner. We will deal with each of these contentions although not in the order in which they are stated by petitioner. First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the grant of bail to petitioner: a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and must always be present at the hearings of these cases; b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia; c) The hold-departure Order of this Court dated April 10, 1997 stands; and d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately acquire jurisdiction over the accused; The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioner's arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his arraignment was also invalid because it was held pursuant to such invalid condition. We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention is that his arraignment was held in pursuance of these conditions for bail. In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if petitioner were released on bail he could, by being absent, prevent his early
10

arraignment and thereby delay his trial until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment, approval of petitioner's bail bonds should be deferred until he could be arraigned. After that, even if petitioner does not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified, since under Art. III, 14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment. This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if the information is quashed and the case is dismissed, there would then be no need for the arraignment of the accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114, 2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the proper court whenever so required by the court or these Rules," while under Rule 116, 1(b) the presence of the accused at the arraignment is required. On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge him with a crime and his right to bail.8 It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial court's order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114, 2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such case, trial shall proceed in absentia." Art. III, 14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,9 (b) during trial whenever necessary for identification purposes,10 and (c) at the promulgation of sentence, unless it is for a light offense, in which case the accused may appear by counsel or representative. 11 At such stages of the proceedings, his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned. Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure petitioner's presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment, however, is that such court strategy violates petitioner's constitutional rights. Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was also invalid. Contrary to petitioner's contention, the arraignment did not emanate from the invalid condition that "approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the arraignment of petitioner could not be omitted. In
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sum, although the condition for the grant of bail to petitioner is invalid, his arraignment and the subsequent proceedings against him are valid. Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he argues that this case should be treated as an exception. He contends that the Court of Appeals should not have evaded the issue of whether he should be charged under several informations corresponding to the number of acts of child abuse allegedly committed by him against each of the complainants. In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to quash, nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a child constitutes a separate offense, it will matter whether the other children are presented during the trial. The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can proceed without further delay. Petitioner's contention is that the 12 informations filed against him allege only one offense of child abuse, regardless of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve). He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child abuse is similar to the crime of largescale illegal recruitment where there is only a single offense regardless of the number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only four informations, corresponding to the number of alleged child victims, can be filed against him. Art. III, 5 of R.A. No. 7160 under which petitioner is being prosecuted, provides: Sec. 5 Child Prostitution and Other Sexual Abuse. Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following: (b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse.

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and (3) the child,14 whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate, or group. Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Air. III, 5 of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate information. This conclusion is confirmed by Art. III, 5(b) of R.A. No. 7160, which provides: [t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a prerequisite to the grant of bail to petitioner), which is hereby declared void.1wphi1.nt SO ORDERED. [G.R. No. 135045. December 15, 2000] PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. IRENEO GAKO, JR. (Presiding Judge of the Regional Trial Court, 7th Judicial Region, Branch 5, Cebu City) and VICENTE GO, respondents. DECISION GONZAGA-REYES, J.: Before us is an appeal by certiorari under Rule 45, Rules of Court of the Resolution of public respondent Court of Appeals (Former Third Special Division) dated August 12, 1998 in CA-G.R. SP No. 47142, entitled PEOPLE OF THE PHILIPPINES versus HON. IRENEO GAKO, JR. ET. AL., dismissing the petition of the Office of the Solicitor General (OSG), herein petitioner. This instant petition stems from a murder case filed against private respondent Vicente Go (Go) and two co-accused Sonny Herodias (Herodias) and Leopoldo dela Pea (de la Pea). The victim, Rafael Galan, Sr. (Galan, Sr.), was shot dead on June 25, 1991. Judge Priscila S. Agana (Judge Agana) originally presided over the criminal case subject of this petition. The prosecution sought to inhibit said judge for her alleged collusion with the accused when she repeatedly sustained the objections of the defense every time the prosecution attempted to establish the conspiracy to kill the victim. Judge Agana denied the motion to inhibit and dismissed the case with prejudice on the ground that the rights of the accused to a speedy trial were violated. The prosecution challenged the dismissal in the Court of Appeals, docketed as CAG.R. SP No. 32954. In its Decision dated April 18, 1994, the Court of Appeals set aside the order of dismissal, granted the inhibition of the judge, and ordered the re-raffle of the case. The decision of the Court of Appeals gained finality when this Court dismissed the appeal of private respondent Go and co-accused Herodias in a
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Minute Resolution dated June 26, 1995. The criminal case was thus set for retrial. A series of delays beset the case when the judges to whom the case was raffled inhibited themselves. The case was finally presided over by public respondent Judge Ireneo Gako, Jr (Judge Gako, Jr.). With the foregoing events as backdrop, the pertinent facts that led to the filing of this instant petition are as follows: On July 3, 1991, de la Pea executed an Extra-judicial Confession implicating therein Herodias and Go in the conspiracy to kill and murder the victim. On July 9, 1991, an Information was filed against the three accused namely, de la Pea, Herodias and Go, charging them with the murder of Galan, Sr. and the case was docketed as Criminal Case No. CBU-22474. Judge Godardo Jacinto, then the Executive Judge of the Regional Trial Court of Cebu City, issued a Warrant of Arrest against the accused. On July 22, 1991 an Urgent Motion to Confine private respondent Go in a hospital was filed. On August 2, 1991, the hearing on said motion was conducted with the prosecution reserving its right to cross-examine Dr. Gonzales. On August 6, 1991 an Order was issued to confine private respondent Go in a hospital without the prosecution having crossexamined Dr. Gonzales on his medical report. On July 15, 1992, a hearing was conducted where de la Pea was presented as a witness for the prosecution. Presiding Judge Agana sustained the objections of the defense counsels each time that the prosecution attempted to establish the conspiracy to kill the victim. The prosecution filed a motion to inhibit Judge Agana, which motion was denied. On November 20, 1992, the Information against Go and Herodias was dismissed with prejudice on the ground that their right to a speedy trial had been violated, leaving de la Pea to face trial. The prosecution then challenged the Order of Dismissal with Prejudice before the Court of Appeals in CA-GR SP No. 32954. In its Decision dated April 18, 1994, the Court of Appeals annulled and set aside the Order of Dismissal, ordered the inhibition of Judge Agana, and ordered the raffle of the case to another branch. With the dismissal of the appeal of private respondent Go and coaccused Herodias by this Court in a Minute Resolution dated June 26, 1995, the criminal case was set anew for trial. The case was re-raffled to RTC-17 and on October 28, 1996, an Alias Warrant of Arrest was issued against private respondent Go and co-accused Herodias. On February 2, 1997, Dr. Matig-a, the physician of Go, filed a Clinical Summary on the illness of Go and on February 13, 1997 Go filed a Petition for Bail. On March 7, 1997 and March 10, 1997, the prosecution presented de la Pea who was acquitted in 1993. De la Pea testified on matters which he was not allowed by then presiding Judge Agana to testify on. On March 21, 1997, a Manifestation on the Confinement of private respondent Vicente Go was filed urging his arrest because he was out of the intensive care unit. The motion of the prosecution to transfer the criminal case to a Special Heinous Crimes Court was denied by then presiding Judge Jesus de la Pea (Judge de la Pea). The case was finally assigned

to Branch 5 with public respondent Judge Gako, Jr. as presiding judge. On September 16 and 17, 1997, the hearing was resumed, now presided by public respondent Judge Gako, Jr. On September 26, 1997, an Urgent Motion to Enforce the Alias Warrant of Arrest was filed praying for the arrest of private respondent Go first before his Clinical Summary Report could be heard. On November 10, 1997, public respondent Judge Gako, Jr. issued an Order granting the Petition for Bail of private respondent Go. On November 11, 1997, the prosecution filed a Vehement Motion to Inhibit public respondent Judge Gako, Jr. due to his alleged delay in resolving the incidents in connection with the arrest of private respondent Go. On November 12, 1992, the prosecution moved for the reconsideration of the Order of the court dated November 10, 1997, the order which granted bail to private respondent Go. On November 14, 1997, a Supplemental Motion to Inhibit public respondent Judge Gako, Jr. was filed by the counsel of the offended party because Judge Gako, Jr. allegedly pre-judged the evidence of the prosecution without carefully evaluating why it is short of the requirement to sustain a verdict of life imprisonment. On November 15, 1997, a Supplemental Motion for Reconsideration was filed from the Order dated November 10, 1997 because the transcripts were allegedly not read. On December 1, 1997, a Motion for the Issuance of Subpoena Duces Tecum to produce the records of Dr. Matig-a was filed to determine if the medical findings on private respondent Go were not exaggerated to prevent his arrest. On December 11, 1997, public respondent Judge Gako, Jr. issued an Order in which he denied the prosecutions Manifestation dated March 21, 1997 on the confinement of private respondent Go, and the Urgent Motion to Enforce the Alias Warrant of Arrest dated September 26, 1997 against private respondent Go. On January 20, 1998, public respondent Judge Gako, Jr. issued an Order denying the: (1) Motion for Reconsideration of the Order dated November 10, 1997; (2) Motion to Inhibit; and (3) Supplemental Motion to Inhibit the Presiding Judge. The prosecution received this order on February 10, 1998. On March 20, 1998, private complainant Guadalupe Galan (Galan), the widow of the victim, filed a petition for certiorari under Rule 65 of the Rules of Court docketed as CA-G.R. SP No. 471460 before public respondent Court of Appeals. The petition sought to annul or set aside the orders of public respondent Judge Gako, Jr. and then acting Presiding Judge de la Pea, to wit: a) Order dated May 23, 1997, which set aside the earlier order of the court that granted the re-raffle of this case to a heinous crime court upon the defenses motion for reconsideration. b) Order dated November 10, 1997, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the court hereby grants bail to accused Vicente Go which is fixed at P50,000.00, after taking into consideration, and this fact has not been disputed, that said accused is presently confined in the hospital and is suffering from the following ailments:
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a) Ischemic Heart Disease, S/P Coronary Angiogram, Single Vessel Disease, LAD, Chronic Stable Angina; b) Essential Hypertension; c) NIDDM d) Hypercholesterolemia; and e) Respiratory Tract Infection And, as per clerical summary report of Dr. Generoso Matiga, dated February 4, 1997, the confinement of accused Go in prison will cause his disease to terminate fatally. c) Order dated December 11, 1997, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Manifestation dated March 3, 1997 and the Motion to Enforce the Alias Warrant of Arrest are hereby denied for want of merit. Besides the accused was already released on bail and the issue on the enforcement of the Alias Warrants of Arrest is already moot and academic. d) Order dated January 20, 1998, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, the Omnibus Motions for Reconsideration on the order of the court granting Bail to accused Vicente Go with Supplemental pleading, xxx and thirdly, to disqualify the herein Presiding Judge, are hereby denied for lack of merit. xxx The petition was signed by the counsel of private complainant, Atty. Antonio Guerrero with the conformity of Vidal Gella, Prosecutor I of the Office of the City Prosecutor of Cebu City. On March 26, 1998, public respondent Court of Appeals (Special Third Division) issued a Resolution dismissing the said petition on these grounds: (1) that the petition was not filed by the Solicitor General in behalf of the People of the Philippines; and (2) that the certification on non-forum shopping was signed by counsel for petitioner Galan, not by petitioner herself. On April 14, 1998, private complainant Galan, through counsel, filed a Motion for Reconsideration of said Resolution indicating that petitioner OSG was going to adopt her petition. On the same date, petitioner OSG manifested before public respondent Court of Appeals that it was joining private complainant Galan in her petition and was adopting her petition as its own. On June 18, 1998, the Court of Appeals issued a resolution that denied said motion for reconsideration of private complainant Galan on the ground that the certification on non-forum shopping was not signed by therein petitioner Galan. The Court of Appeals also reasoned that the fact that the OSG joined petitioner Galan in her petition did not cure the above deficiency. Petitioner OSG received copy of the resolution on June 29, 1998. On August 3, 1998 petitioner OSG filed a petition for certiorari under Rule 65 of the Rules of Court with the Court of Appeals docketed as CA-G.R. SP No. 47142. On August 12, 1998, said petition of petitioner OSG was dismissed by public respondent Court of Appeals, the pertinent portions of the resolution read: The Court notes that said petition is practically a reproduction of the petition earlier filed by complainant Guadalupe Galan, which was dismissed on March 26, 1998. The dismissal was reaffirmed

by the Court in its resolution dated June 18, 1998, copy of which was received by the OSG on June 29, 1998. Instead of seeking, on time, the amendment of the first petition or a review of the resolution dismissing it, the OSG has come to this Court through the instant petition which not only raises the same matters ventilated in the same petition but also was filed beyond the 60-day period prescribed in Section 4, Rule 65 of the 1997 Rules of Civil Procedure. WHEREFORE, premises considered, the Petition dated July 17, 1998, is hereby DISMISSED. SO ORDERED. In seeking the allowance of this instant petition, petitioner OSG relies upon the following grounds:
I. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN NOT GIVING DUE COURSE TO THE SPECIAL CIVIL ACTION OF (sic) CERTIORARI FILED BY PETITIONER DOCKETED AS CA-G.R. SP NO. 47142.

Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be gainsaid that respondents have sufficient interest and personality as person(s) aggrieved by petitioner judges ruling on his non-disqualification to file the special civil action under sections 1 and 2 of Rule 65. Recently in line with the underlying spirit of a liberal construction of the Rules of Court in order to promote their object, as against the literal application of Rule 110, section 2, we held, overruling the implication of an earlier case, that a widow possesses the right as an offended party to file a criminal complaint for the murder of her deceased husband. (Id., p. 699) Hence, private complainant Galan had sufficient interest and personality as the aggrieved party in a criminal case to file the special civil action for certiorari before public respondent Court of Appeals. The proper ground therefore for dismissing her petition is the fact that it was her counsel who signed the certificate on nonforum shopping and not herself as petitioner. Petitioner OSG submits that assuming that the petition for certiorari it filed with public respondent Court of Appeals was filed out of time, nonetheless the following issues raised in said petition warranted resolution:
I. WHETHER OR NOT THE ORDER DATED NOVEMBER 10, 1997 GRANTING BAIL IS PROPER WITHOUT EXPRESSING THE COURTS FINDING THAT THE EVIDENCE OF GUILT OF THE ACCUSED IS NOT STRONG.

II. PUBLIC RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT SAID SPECIAL CIVIL ACTION WAS FILED BEYOND THE SIXTY-DAY PERIOD PRESCRIBED IN SECTION 4, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE.

III.PUBLIC RESPONDENT COURT OF APPEALS ERRED IN NOT TOUCHING ON THE MERITS OF THE SAID PETITION.

Public respondent Court of Appeals correctly ruled that there was sufficient ground to dismiss the petition filed by private complainant Galan since it was her counsel who signed the certificate on non-forum shopping and not private complainant herself. The petition clearly failed to comply with the requirement imposed by Section 1, Rule 65, in relation to Section 3, Rule 46 of the 1997 Rules of Court. We also agree with the Court of Appeals, that the mere fact that petitioner OSG manifested that it was adopting the petition of therein petitioner Galan did not cure the defective petition considering that the certificate on non-forum shopping was still not signed by petitioner Galan but by her counsel. The manifestation of petitioner OSG also did not contain a certification on non-forum shopping. By the time that petitioner OSG filed its petition for certiorari in behalf of the People of the Philippines on August 3, 1998, the dismissal of the petition of private complainant Galan had already been reaffirmed and the 60-day period for petitioner OSG to file its petition had already lapsed. In dismissing the petition of petitioner OSG, public respondent Court of Appeals pointed out that private complainant Galan had no legal standing to file the petition before it because only the Solicitor General can represent the People before this Court (Court of Appeals) and the Supreme Court. On this point, we differ. In the recent case of Narciso vs. Romana-Cruz, we reiterated the doctrine enunciated in People vs. Calo that: While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal proceeding pending in this Court and the Court of Appeals (Republic vs. Partisala, 118 SCRA 320 [1982]), the ends of substantial justice would be better served, and the issues in this action could be determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case, private petitioner has sufficient personality and a valid grievance against Judge Adaos order granting bail to the alleged murderers of his (private petitioners) father. In Paredes vs. Gopengco, 29 SCRA 688 (1969), this Court ruled that the offended parties in criminal cases have sufficient interest and personality as person(s) aggrieved to file the special civil action of prohibition and certiorari under Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the Rules of Court in order to promote their object, thus:
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II. WHETHER OR NOT PRIVATE RESPONDENT VICENTE GO IS CONSIDERED UNDER LEGAL CUSTODY AS OF NOVEMBER 20, 1992 UNTIL THE PRESENT BECAUSE OF HIS HOSPITAL CONFINEMENT BY ORDER OF THE COURT DATED AUGUST 6, 1991.

III. WHETHER OR NOT IT IS NECESSARY THAT CRIMINAL CASE NO. CBU-22474 SHOULD BE TRIED BY THE SPECIAL HEINOUS CRIMES COURT NOTWITHSTANDING THAT THE MURDER WAS COMMITTED IN 1991 BEFORE THE PASSAGE OF THE LAW CREATING THESE SPECIAL COURTS.

This instant petition also seeks to set aside the following orders: (1) Order dated May 23, 1997 which set aside the earlier order of the trial court that granted the re-raffle of this case to a heinous crime court upon the motion for reconsideration of the defense; (2) Order dated November 10, 1997 that granted the bail of accused Go in the amount of P 50,000.00; (3) Order dated December 11, 1997 denying the Motion to Enforce the Alias Warrants of arrest; and (4) Order dated January 20, 1998 denying the Omnibus Motions for Reconsideration of the order of the court granting bail to accused Go and ruling against the disqualification of respondent Judge Gako, Jr. While the petition of private complainant Galan was indeed defective in form and the petition of petitioner OSG was demonstrably filed beyond the 60-day period, we however resolve to grant this petition in part in view of the primordial interest of substantial justice. The just cited issues in the petition before public respondent Court of Appeals presented extenuating circumstances that should have compelled the latter to pass upon the merits of said petition. In a number of cases, we have set aside the strict application of procedural technicalities in the higher interest of justice. As we shall show hereunder, the issues raised by petitioner OSG deserve disposition to avoid a miscarriage of justice and to end the streaks of delay which have saddled the criminal case subject of this petition. First, the assailed Order dated November 10, 1997 granting bail is legally infirm for failing to conform with the requirement that in cases when the granting of bail is not a matter of right, a hearing for that purpose must first be conducted. Section 13, Article III of the Constitution provides the instances when bail is a matter of right or discretionary, to wit: All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 7, Article 114 of the Rules of Court, as amended, reiterates that: No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution. Based on the foregoing, bail is not a matter of right with respect to persons charged with a crime the penalty for which is reclusion perpetua, life imprisonment, or death, when the evidence of guilt is strong. Private respondent Go, accused in the criminal case, was charged with murder in 1991, before the passage of RA 7659, the law that re-imposed the death penalty. Murder then was a crime punishable by reclusion perpetua. Thus, accused Gos right to bail is merely discretionary. We have consistently held that when bail is discretionary, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties. A summary hearing is defined as such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination. It is inconceivable how Judge Gako, Jr. could have appreciated the strength or weakness of the evidence of guilt of the accused when he did not even bother to hear the prosecution. The reliance of Judge Gako, Jr. on the voluminous records of the case simply does not suffice. As judge, he was mandated to conduct a hearing on the petition for bail of the accused since he knew that the crime charged is one that carries a penalty of reclusion perpetua, and in that hearing, the prosecution is entitled to present its evidence. It is worth stressing that the prosecution is equally entitled to due process. Another compelling reason why a hearing of a petition for bail is necessary is to determine the amount of bail based on the guidelines set forth in Section 6, Rule 114 of the Rules of Court. Without the required hearing, the bail granted to accused Go in the amount of P 50,000.00 is undoubtedly arbitrary and without basis. Second, the order granting bail issued by Judge Gako, Jr. merely made a conclusion without a summary of the evidence, a substantive and formal defect that voids the grant of bail. Well settled is the rule that after the hearing, whether the bail is granted or denied, the presiding judge is mandated to prepare a summary of the evidence for the prosecution. A summary is defined as a comprehensive and usually brief abstract or digest of a text or statement. Based on the summary of evidence, the judge formulates his own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The importance of a summary cannot be downplayed, it is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or denial of bail. Thus, we laid down the duties of a judge in case an application for bail is filed, viz: (1) Notify the prosecutor of the hearing for bail or require him to submit his recommendation;

(2) Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion; (3) Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution; (Italics supplied) (4) If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, petition should be denied. In dispensing with the required hearing for bail, Judge Gako, Jr. pointed out in the assailed order that the accused was confined in the hospital, was suffering from a number of ailments and that the eventual confinement of accused Go in prison will allegedly cause his disease to terminate fatally. The irregularity in the grant of bail however is not attenuated since respondent judges findings were based on the summary clinical report of Dr. Matiga dated February 4, 1997 while the order granting bail was issued on November 10, 1997. It could not therefore be reasonably assumed that the actual state of health of accused Go could still be accurately reflected by the said medical report when nine months had already passed from the time that said medical report was prepared. It was therefore clear error for Judge Gako, Jr. to depend solely on the dated medical report in granting bail when the defense failed to present a more recent one that would convincingly raise strong grounds to apprehend that the imprisonment of the accused would endanger his life. Petitioner OSG advances the theory that the accused, private respondent Go, is not entitled to bail because he was allegedly not under the custody of the law at the time that he applied for bail. Petitioner OSG anchors this theory on the following arguments: that the August 6, 1991order commanding the confinement of accused Go in the hospital was void because the prosecution was not able to cross-examine the doctor who prepared the medical report pertaining to the accused illnesses; that when the Information in this case was ordered dismissed with prejudice on November 20, 1992 by then presiding Judge Agana, accused Go was bodily released from his confinement; that at that point, the trial court had lost its jurisdiction over the person of the accused; that before the dismissal with prejudice was voided by the Court of Appeals, accused traveled extensively abroad; that when the case was re-raffled and finally presided by Judge Gako, Jr. accused continued to be confined in the hospital on the strength of the allegedly void order of confinement dated August 6, 1991; that Judge Gako, Jr. refused to enforce the alias warrant of arrest on the ground that the order of confinement was still in effect; and that accused Go voluntarily admitted himself to the hospital, hence was not yet deprived of his liberty at the time that he applied for bail. We must first correct the perception that the trial court was ousted of its jurisdiction over the person of accused Go after Judge Agana erroneously dismissed the case and upon the refusal of Judge Gako, Jr. to enforce the alias warrant of arrest during the re-trial of the case. Applicable to this issue is the basic principle that the jurisdiction of a court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction from attaching in the first instance; and it retains jurisdiction until it finally disposes of the case. Prior to the dismissal of the case by Judge Agana, the court had already acquired its jurisdiction over accused Go when he was duly arraigned on December 11, 1991. The fact that this Court affirmed the decision of the Court of Appeals that voided the order dismissing the criminal case with prejudice is a clear declaration that the jurisdiction of the trial court over the criminal case and over the person of the accused continued to subsist. With the nullification of the dismissal of the case, it then became explicit that the court should have tried the case to its end. The case was ordered remanded and re-raffled because the inhibition of then presiding Judge Agana was granted, in no way was the jurisdiction
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of the trial court over the case and over the person of the accused ever placed in doubt. We now discuss the theory of petitioner OSG that the right of accused Go to bail did not accrue because he was not under the custody of the law or deprived of his liberty. Petitioner OSG rests this claim on the allegations that accused Go voluntarily admitted himself to the hospital during the re-trial of the case and that Judge Gako, Jr. refused to enforce the alias warrant of arrest as evidenced by the questioned Order dated December 11, 1997. By the very definition of bail in Section 1, Rule 114 of the Rules of Court, the person applying for bail must be in the custody of the law. A person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or even without a warrant under Section 5, Rule 113 in relation to Section 7, Rule 112 of the Revised Rules of Court, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. We do not agree with petitioner OSG that accused Go was not in custody of the law at the time that he applied for bail. In the same assailed order, Judge Gako, Jr. explained his refusal to enforce the alias warrant of arrest in this manner: Secondly, the movant wanted this court to order the arrest of the accused in view of the Alias Warrant of Arrest issued by Acting Judge Andres Garalza, Jr. on October 28, 1996. For the information of the movant, there is another Alias Warrant of Arrest issued by Judge Jose Burgos on May 27, 1996 after he denied the Investigation Report submitted by the Office of the Cebu City Prosecutor which recommended the dismissal of the case against Vicente Go. The court believes honestly that these two (2) Alias Warrants of Arrest were improvidently issued because at that time the Warrant of Arrest issued by then Judge Godardo Jacinto on July 9, 1991 was still valid and subsisting. In fact it was this latter Warrant of Arrest that handed to this court jurisdiction over the person of the accused Go. The Alias Warrant of Arrest issued by Judge Burgos has no legal basis not only because the Warrant of Arrest issued by Judge Jacinto is still valid and subsisting but also for the fact that it was issued as an aftermath of the courts denial of the Reinvestigation Report of the Office of the Cebu City Prosecutor which recommended the dismissal of Gos case. Under Section 6, Rule 112 of the 1985 Rules of Criminal Procedure, as amended, the Regional Trial Court may issue a warrant of arrest after a preliminary investigation, not after reinvestigation when one was already was (sic) issued. Likewise, the Alias Warrant of Arrest issued by Judge Garalza, which came about five months (5) later, had no legal basis, firstly, because there was already an Alias Warrant of Arrest issued by Judge Burgos on May 27, 1996, secondly, the Warrant of Arrest issued by Judge Jacinto on July 9, 1991 is still valid and subsisting. But what appears more funny is the Alias Warrant of Arrest issued by Judge Garalza against accused Go who was at that time lawfully confined in the hospital pursuant to an Order of the court, dated August 6, 1991. When Judge Garalza issued said alias (sic) Warrant of Arrest, there was no showing that accused Go had escaped, or refused to obey a lawful Order of the court. WHEREFORE, in view of the foregoing, the Manifestation, dated March 21, 1997, and the Motion to Enforce the Alias Warrant of Arrest are hereby denied for want of merit. Besides, the accused was already released on bail and the issue on the enforcement of the Alias Warrants of Arrest is already moot and academic. As pointed out by Judge Gako, Jr., accused Go had already been arrested on the basis of a warrant of arrest issued by Judge Jacinto
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on July 9, 1991 which gave the trial court jurisdiction over the accused. As mentioned earlier, accused Go was duly arraigned before the case was erroneously dismissed. From the time that accused Go was arrested, he was already deprived of his liberty and was in the custody of the law. At the re-trial of the case, accused Gos confinement in the hospital was by virtue of a court order dated August 6, 1991; the restraint on the freedom of accused Go is evident. There was therefore no more need to enforce the alias warrant of arrest since accused Go was still under the custody of the law, and there being no evidence that accused Go had escaped or refused to obey a lawful order of the court. At this point, the setting aside of the questioned order dated December 11, 1997 that denied the enforcement of the alias warrant of arrest against accused Go has become moot and academic with the provisional freedom of accused Go after his bail was erroneously granted by Judge Gako, Jr. We however find merit in the argument of petitioner OSG that the order dated August 6, 1991 authorizing the confinement of accused Go in the hospital was, in the words of petitioner OSG, a continuing one and built-in license for the accused to automatically confine himself as many times as he likes. It may be true that said order subsisted for it was never quashed, but at the re-trial of the case, the prosecution through its motion to enforce the alias warrant of arrest dated September 26, 1997 had already put in issue the health of the accused. Yet, Judge Gako, Jr. in an Order dated December 11, 1997 justified the confinement of accused Go in the hospital on the basis of the August 6, 1991 order of confinement. The prosecution vigorously objected to the confinement of accused Go in the hospital, questioning the alleged ill health of the accused. Judge Gako, Jr. was called upon to rule on this matter and instead of ascertaining the true state of health of said accused, Judge Gako, Jr. instead inexplicably relied on a court order authorizing the confinement of accused Go in the hospital, an order that was issued six years ago. The proper course of action in this case should have been to recall the order of confinement and to order the detention of accused Go until the defense could prove through competent evidence that the imprisonment of said accused would imperil his health. The order to arrest accused Go in such case would be the consequence of the recall of the order of confinement, not for the purpose of placing him under the custody of the law since to repeat, he already was under the custody of the law. As discussed earlier, accused Go is currently already out on bail, the granting of which is void for want of a hearing and summary of evidence. In cases when the grant of bail is void, this Court will not hesitate to set aside the order granting bail and order that the accused be recommitted to jail pending his application for bail, as this Court now holds in the case at bar. As to the issue of whether or not public respondent Judge Gako, Jr. should be inhibited on the ground of partiality, the relevant provision to consider is Section 1, Rule 137 of the Rules of Court, it provides: SECTION 1. Disqualification of judges.No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the records. A judge, may in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

The ground of partiality is not one of the grounds enumerated in the first paragraph of the just quoted provision that would per se disqualify a judge from sitting in a case. Jurisprudence is clear that partiality is a recognized ground for the voluntary inhibition of the judge under the second paragraph of Section 1, Rule 137. In this case, Judge Gako, Jr. has already ruled in the assailed Order dated January 20, 1998 that he will not inhibit himself. To overturn the ruling of Judge Gako, Jr. and rule for his disqualification, there must be clear and convincing evidence to prove the charge of partiality. Material to this issue are the following parameters we have set in disqualifying a judge: mere suspicion that a judge was partial to a party is not enough; that there should be adequate evidence to prove the charge; that there must be showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar; and that to be disqualifying, the bias and prejudice must be shown to have stemmed from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Petitioner OSG accuses Judge Gako, Jr. of partiality supposedly shown by the grant of bail without a hearing and the alleged suppression of the hearing on the Clinical Summary Report of the accused. Again, to successfully disqualify a judge on the ground of bias or partiality, there must be concrete proof that a judge has a personal interest in the case and his bias is shown to have stemmed from an extra-judicial source. This precept springs from the presumption that a judge shall decide on the merits of a case with an unclouded vision of its facts. Thus, we have held that an erroneous ruling on the grant of bail alone does not constitute evidence of bias. Likewise, respondent judges reliance on the order of confinement even if erroneous is not sufficient to point to a conclusion that he was manifestly partial to the defense. To allow the disqualification of a judge on the mere allegation of partiality with nothing more would open the floodgates to forum shopping. Corollary to the foregoing, we do not find well taken the recommendation of petitioner OSG that the criminal case be raffled to a Special Heinous Crimes Court. Even petitioner OSG concededly recognizes that Supreme Court Administrative Order No. 51-96 dated May 3, 1996 creating the Special Heinous Crimes Court provides that: All cases covered by this order where trial has already been commenced shall continue to be heard by the branches to which these were originally assigned. Supreme Court Administrative Order No. 104-96 dated October 21, 1996 which amended Supreme Court Administrative Order No. 51-96, also contains a similar provision, to wit: Where trial has already begun, the same shall continue to be heard by the respective branches to which they have been originally assigned. For purposes hereof, a criminal case is considered begun when the accused or any of them has already been arraigned; in a civil case, it is when pre-trial has already been conducted and a pre-trial order issued. We thus see no cogent reason to set aside the order dated May 23, 1997 that denied the transfer of Criminal Case No. CBU-22474 to a Special Heinous Crimes Court when the trial of the case has already begun and when the crime for which the accused is being charged with occurred prior to the creation of the Special Heinous Crimes Court. Furthermore, there are no extraordinary circumstances that would compel this Court to exercise its power under the Constitution to order a change of venue or place of trial. WHEREFORE, in view of the foregoing, the assailed resolution of public respondent Court of Appeals dated August 12, 1998 is SET ASIDE. The order dated November 10, 1997 of the trial court in Criminal Case No. CBU-22474 is SET ASIDE for being void in so far as it grants bail to the accused and the accused is ordered recommitted to jail pending the hearing on the bail application. The order dated May 23, 1997 denying the re-raffle of Criminal Case No. CBU-22474 to a Special Heinous Crimes Court and the resolution dated January 20, 1997 ruling against the inhibition of presiding Judge Ireneo Gako, Jr. are hereby AFFIRMED. The court a
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quo is ordered to proceed with dispatch in the disposition of this case. SO ORDERED. G.R. No. 115407 August 28, 1995 MIGUEL P. PADERANGA, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. REGALADO, J.: The adverse decision in this case promulgated by respondent Court of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as well as its resolution of April 26, 1994 denying the motion for reconsideration thereof, are challenged by petitioner Miguel P. Paderanga in this appeal by certiorari through a petition which raises issues centering mainly on said petitioner's right to be admitted to bail. On January 28, 1990, petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple murder in Criminal Case No. 86-39 of the Regional Trial Court, Branch 18 of Cagayan de Oro City for the killing of members of the Bucag family sometime in 1984 in Gingoog City of which petitioner was the mayor at the time. The original information, filed on October 6, 1986 with the Regional Trial Court of Gingoog City, 1 had initially indicted for multiple murder eight accused suspect, namely, Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe And Richard Doe as the alleged conspirators in the indiscriminate slaying of the spouses Romeo and Juliet Bucag and their son, Romeo, Jr. However, only one of the accused, Felipe Galarion, was apprehended, tried and eventually convicted. Galarion later escaped from prison. The others have remained at large up to the present. 2 In a bizarre twist of events, one Felizardo ("Ely") Roxas was implicated in the crime. In an amended information dated October 6, 1988, he was charged as a co-accused therein. As herein petitioner was his former employer and thus knew him well, Roxas engaged the former's services as counsel in said case. Ironically, in the course of the preliminary investigation therein, said accused, in a signed affidavit dated March 30, 1989 but which he later retracted on June 20, 1990, implicated petitioner as the supposed mastermind behind the massacre of the Bucag family. 3 Then, upon the inhibition of the City Prosecutor of Cagayan de Oro City from the case per his resolution of July 7, 1989, the Department of Justice, at the instance of said prosecutor, designated a replacement, State Prosecutor Henrick F. Gingoyon, for purposes of both the preliminary investigation and prosecution of Criminal Case No. 86-39. Pursuant to a resolution of the new prosecutor dated September 6, 1989, petitioner was finally charged as a co-conspirator in said criminal case in a second amended information dated October 6, 1992. Petitioner assailed his inclusion therein as a co-accused all the way to this Court in G.R. No. 96080 entitled "Atty. Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H. Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca B. Tan." In an en banc decision promulgated on April 19, 1991, the Court sustained the filing of the second amended information against him. 4 Under this backdrop, the trial of the base was all set to start with the issuance of an arrest warrant for petitioner's apprehension but, before it could be served on him, petitioner through counsel, filed on October 28, 1992 a motion for admission to bail with the trial court which set the same for hearing on November 5, 1992. Petitioner duly furnished copies of the motion to State Prosecutor Henrick F. Gingoyon, the Regional State Prosecutor's Office, and

the private prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the trial court proceeded to hear the application for bail. Four of petitioner's counsel appeared in court but only Assistant Prosecutor Erlindo Abejo of the Regional State Prosecution's Office appeared for the prosecution. 5 As petitioner was then confined at the Cagayan Capitol College General Hospital due to "acute costochondritis," his counsel manifested that they were submitting custody over the person of their client to the local chapter president of the integrated Bar of the Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the law. Prosecutor Abejo, on the other hand, informed the trial court that in accordance with the directive of the chief of their office, Regional State prosecutor Jesus Zozobrado, the prosecution was neither supporting nor opposing the application for bail and that they were submitting the same to the sound discretion of the trail judge. 6 Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation of evidence. On that note and in a resolution dated November 5, 1992, the trial court admitted petitioner to bail in the amount of P200,000.00. The following day, November 6, 1992, petitioner, apparently still weak but well enough to travel by then, managed to personally appear before the clerk of court of the trial court and posted bail in the amount thus fixed. He was thereafter arraigned and in the trial that ensued, he also personally appeared and attended all the scheduled court hearings of the case. 7 The subsequent motion for reconsideration of said resolution filed twenty (20) days later on November 26, 1992 by Prosecutor Gingoyon who allegedly received his copy of the petition for admission to bail on the day after the hearing, was denied by the trial court in its omnibus order dated March 29, 1993. On October 1, 1993, or more than six (6) months later, Prosecutor Gingoyon elevated the matter to respondent Court of Appeals through a special civil action for certiorari. Thus were the resolution and the order of the trial court granting bail to petitioner annulled on November 24, 1993, in the decision now under review, on the ground that they were tainted with grave abuse of discretion. 8 Respondent court observed in its decision that at the time of petitioner's application for bail, he was not yet "in the custody of the law," apparently because he filed his motion for admission to bail before he was actually arrested or had voluntarily surrendered. It further noted that apart from the circumstance that petitioner was charged with a crime punishable by reclusion perpetua, the evidence of guilt was strong as borne out by the fact that no bail was recommended by the prosecution, for which reasons it held that the grant of bail was doubly improvident. Lastly, the prosecution, according to respondent court, was not afforded an opportunity to oppose petitioner's application for bail contrary to the requirements of due process. Hence, this appeal. Petitioner argues that, in accordance with the ruling of this Court in Santiago vs. Vasquez etc., et al., 9 his filing of the aforesaid application for bail with the trial court effectively conferred on the latter jurisdiction over his person. In short, for all intents and purposes, he was in the custody of the law. In petitioner's words, the "invocation by the accused of the court's jurisdiction by filing a pleading in court is sufficient to vest the court with jurisdiction over the person of the accused and bring him within the custody of the law." Petitioner goes on to contend that the evidence on record negates the existence of such strong evidence as would bar his provisional release on bail. Furthermore, the prosecution, by reason of the waiver by Prosecutor Abejo of any further presentation of evidence to oppose the application for bail and whose representation in court in behalf of the prosecution bound the latter, cannot legally assert any claim to a denial of procedural due process. Finally, petitioner points out that the special civil action for certiorari was filed in respondent court after an unjustifiable length of time.
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On the undisputed facts , the legal principles applicable and the equities involved in this case, the Court finds for petitioner. 1. Section 1 of Rule 114, as amended, defines bail as the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearing before any court as required under the conditions specified in said Rule. Its main purpose, then, is to relieve an accused from the rigors of imprisonment until his conviction and yet secure his appearance at the trial. 10 As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him has been acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. 11 As this Court has put it in a case "it would be incongruous to grant bail to one who is free." 12 The rationale behind the rule is that it discourages and prevents resort to the former pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. 13 Thus, in Feliciano vs. Pasicolan, etc., et al., 14 where the petitioner who had been charged with kidnapping with murder went into hiding without surrendering himself, and shortly thereafter filed a motion asking the court to fix the amount of the bail bond for his release pending trial, the Supreme Court categorically pronounced that said petitioner was not eligible for admission to bail. As a paramount requisite then, only those persons who have either been arrested, detained, or other wise deprived of their freedom will ever have occasion to seek the protective mantle extended by the right to bail. The person seeking his provisional release under the auspices of bail need not even wait for a formal complaint or information to be filed against him as it is available to "all persons" 15 where the offense is bailable. The rule is, of course, subject to the condition or limitation that the applicant is in the custody of the law. 16 On the other hand, a person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or by warrantless arrest under Section 5, Rule 113 in relation to Section 7, Rule 112 of the revised Rules on Criminal Procedure, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. 17 in this light, the ruling, vis-a-vis the facts in Santiago vs. Vasquez, etc., et al., 18 should be explained. In said case, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said ex-parte motion and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. When the Sandiganbayan later issued a hold departure order against her, she question the jurisdiction of that court over her person in a recourse before this Court, on the ground that "she neither been arrested nor has she voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared before said court" In rejecting her arguments, the Court held that she was clearly estopped from assailing the jurisdiction of the Sandiganbayan for by her own representations in the urgent ex parte motion for bail she had earlier recognized such jurisdiction. Furthermore, by actually posting a cash bail was accepted by the court, she had effectively

submitted to its jurisdiction over her person. Nonetheless, on the matter of bail, the Court took pains to reiterate that the same cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender. In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience therefore, be considered as being constructively and legally under custody. Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the arrest. 19 The latter mode may be exemplified by the so-called "house arrest" or, in case of military offenders, by being "confined to quarters" or restricted to the military camp area. It should be stressed herein that petitioner, through his counsel, emphatically made it known to the prosecution and to the trail court during the hearing for bail that he could not personally appear as he was then confined at the nearby Cagayan Capitol College General Hospital for acute costochondritis, and could not then obtain medical clearance to leave the hospital. The prosecution and the trial court, notwithstanding their explicit knowledge of the specific whereabouts of petitioner, never lifted a finger to have the arrest warrant duly served upon him. Certainly, it would have taken but the slightest effort to place petitioner in the physical custody of the authorities, since he was then incapacitated and under medication in a hospital bed just over a kilometer away, by simply ordering his confinement or placing him under guard. The undeniable fact is that petitioner was by then in the constructive custody of the law. Apparently, both the trial court and the prosecutors agreed on that point since they never attempted to have him physically restrained. Through his lawyers, he expressly submitted to physical and legal control over his person, firstly, by filing the application for bail with the trail court; secondly, by furnishing true information of his actual whereabouts; and, more importantly, by unequivocally recognizing the jurisdiction of the said court. Moreover, when it came to his knowledge that a warrant for his arrest had been issued, petitioner never made any attempt or evinced any intent to evade the clutches of the law or concealed his whereabouts from the authorities since the day he was charged in court, up to the submission application for bail, and until the day of the hearing thereof. At the hearing, his counsel offered proof of his actual confinement at the hospital on account of an acute ailment, which facts were not at all contested as they were easily verifiable. And, as a manifestation of his good faith and of his actual recognition of the authority of trial court, petitioner's counsel readily informed the court that they were surrendering custody of petitioner to the president of the Integrated Bar of the Philippines, Misamis Oriental Chapter. 20 In other words, the motion for admission to bail was filed not for the purpose or in the manner of the former practice which the law proscribes for the being derogatory of the authority and jurisdiction of the courts, as what had happened in Feliciano. There was here no intent or strategy employed to obtain bail in absentia and thereby be able to avoid arrest should the application therefore be denied. 2. Section 13, Article III of the Constitution lays down the rule that before conviction, all indictees shall be allowed bail, except only those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. In pursuance thereof, Section 4 of Rule 114, as amended, now provides that all persons in custody shall, before conviction by a regional trial court of an offense not punishable by death, reclusion perpetua or life
19

imprisonment, be admitted to bail as a matter of right. The right to bail, which may be waived considering its personal nature 21 and which, to repeat, arises from the time one is placed in the custody of the law, springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after trial he would be entitled to acquittal, unless his guilt be established beyond reasonable doubt. 22 Thus, the general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment 23 and the evidence of guilt is strong. Under said general rule, upon proper application for admission to bail, the court having custody of the accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing, mandatory in nature and which should be summary or otherwise in the discretion of the court, 24 is required with the participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether or not the evidence of guilt is strong for the provisional liberty of the applicant. 25 Of course, the burden of proof is on the prosecution to show that the evidence meets the required quantum. 26 Where such a hearing is set upon proper motion or petition, the prosecution must be give an opportunity to present, within a reasonable time, all the evidence that it may want to introduce before the court may resolve the application, since it is equally entitled as the accused to due process. 27 If the prosecution is denied this opportunity, there would be a denial of procedural due process, as a consequence of which the court's order in respect of the motion or petition is void. 28 At the hearing, the petitioner can rightfully cross-examine the witnesses presented by the prosecution and introduce his own evidence in rebuttal. 29 When, eventually, the court issues an order either granting or refusing bail, the same should contain a summary of the evidence for the prosecution, followed by its conclusion as to whether or not the evidence of guilt is strong. 30 The court, though, cannot rely on mere affidavits or recitals of their contents, if timely objected to, for these represent only hearsay evidence, and thus are insufficient to establish the quantum of evidence that the law requires. 31 In this appeal, the prosecution assails what it considers to be a violation of procedural due process when the court below allowed Assistant Prosecutor Erlindo Abejo of the Regional State Prosecutor's Office to appear in behalf of the prosecution, instead of State Prosecutor Henrick P. Gingoyon who is claimed to be the sole government prosecutor expressly authorized to handle the case and who received his copy of the motion only on the day after the hearing had been conducted. Accordingly, the prosecution now insists that Prosecutor Abejo had no authority at all to waive the presentation of any further evidence in opposition to the application for bail and to submit the matter to the sound discretion of the trial court. In addition, they argue that the prosecution was not afforded "reasonable time" to oppose that application for bail. We disagree. Firstly, it is undisputed that the Office of the Regional State Prosecutor acted as the collaborating counsel, with State Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the basis of an authority from then Chief State Prosecutor Fernando de Leon which was sent through radio message on July 10, 1992 and duly received by the Office of the Regional State Prosecutor on the same date. This authorization, which was to be continuing until and unless it was expressly withdrawn, was later confirmed and then withdrawn only on July 12, 1993 by then Secretary of Justice Franklin M. Drilon. This was done after one Rebecca Bucag-tan questioned the authority of Regional State Prosecutor Jesus Zozobrado and State Prosecutor II Erlindo Abejo to enter their appearance as collaborating government prosecutors in said

criminal case. 32 It was in fact by virtue of this arrangement that the same Prosecutor Zozobrado and Prosecutor Perseverando Arana entered their appearance as collaborating prosecutor in the previous hearing in said case. 33 Hence, on the strength of said authority and of its receipt of the notice of the hearing for bail, the Regional State Prosecutor's Office, through Prosecutor Abejo, could validly represent the prosecution in the hearing held on November 5, 1992. Secondly, although it is now claimed that Prosecutor Abejo was allegedly not familiar with the case, he nonetheless was explicitly instructed about the position of the Regional State Prosecutor's Office on the matter. Prosecutor Zozobrado, whose office received its copy of the motion on the very day when it was sent, that is, October 28, 1992, duly instructed Prosecutor Abejo to manifest to the court that the prosecution was neither supporting nor opposing the application for bail and that they were submitting the matter to its sound discretion. Obviously, what this meant was that the prosecution, at that particular posture of the case, was waiving the presentation of any countervailing evidence. When the court a quo sought to ascertain whether or not that was the real import of the submission by Prosecutor Abejo, the latter readily answered in the affirmative. The following exchanges bear this out:
PROSECUTOR ERLINDO ABEJO: I was informed to appear in this case just now Your Honor. COURT: Where is your Chief of Office? Your office received a copy of the motion as early as October 28. There is an element of urgency here. PROSECUTOR ABEJO: I am not aware of that, Your Honor, I was only informed just now. The one assigned here is State Prosecutor Perseverando Arena, Jr. who unfortunately is in the hospital attending to his sick son. I do not know about this but before I came I received an instruction from our Chief to relay to this court the stand of the office regarding the motion to admit bail. That office is neither supporting nor opposing it and we are submitting to the sound discretion of the Honorable Court. COURT: Place that manifestation on record. For the record, Fiscal Abejo, would you like to formally enter your appearance in this matter? PROSECUTOR ABEJO: Yes, Your Honor. For the government, the Regional State Prosecutor's Office represented by State Prosecutor Erlindo Abejo. COURT: By that manifestation do you want the Court to understand that in effect, at least, the prosecution is dispensing with the presentation of evidence to show that the guilt of the accused is strong, the denial . . . PROSECUTOR ABEJO: I am amenable to that manifestation, Your Honor. COURT: Final inquiry. Is the Prosecution willing to submit the incident covered by this particular motion for resolution by this court? PROSECUTOR ABEJO: Yes, Your Honor. COURT: 20

Without presenting any further evidence? PROSECUTOR ABEJO:

Yes, Your Honor. 34 It is further evident from the foregoing that the prosecution, on the instructions of Regional State prosecutor Zozobrado, had no intention at all to oppose the motion for bail and this should be so notwithstanding the statement that they were "neither supporting nor opposing" the motion. What is of significance is the manifestation that the prosecution was "submitting (the motion) to the sound discretion of the Honorable Court." By that, it could not be any clearer. The prosecution was dispensing with the introduction of evidence en contra and this it did at the proper forum and stage of the proceedings, that is, during the mandatory hearing for bail and after the trial court had fully satisfied itself that such was the position of the prosecution. 3. In Herras Teehankee vs. Director of Prisons, 35 it was stressed that where the trial court has reasons to believe that the prosecutor's attitude of not opposing the application for bail is not justified, as when he is evidently committing a gross error or a dereliction of duty, the court, in the interest of Justice, must inquire from the prosecutor concerned as the nature of his evidence to determine whether or not it is strong. And, in the very recent administrative matter Re: First Indorsement Dated July 21, 1992 of Hon. Fernando de Leon, Chief State Prosecutor, Department of Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37 held that where the prosecutor interposes no objection to the motion of the accused, the trial court should nevertheless set the application for hearing and from there diligently ascertain from the prosecution whether the latter is really not contesting the bail application. No irregularity, in the context of procedural due process, could therefore be attributed to the trial court here as regards its order granting bail to petitioner. A review of the transcript of the stenographic notes pertinent to its resolution of November 5, 1992 and the omnibus order of March 29, 1993 abundantly reveals scrupulous adherence to procedural rules. As summarized in its aforementioned order, the lower court exhausted all means to convince itself of the propriety of the waiver of evidence on the part of the prosecution. Moreover, the omnibus order contained the requisite summary of the evidence of both the prosecution and the defense, and only after sifting through them did the court conclude that petitioner could be provisionally released on bail. Parenthetically, there is no showing that, since then and up to the present, petitioner has ever committed any violation of the conditions of his bail. As to the contention that the prosecutor was not given the opportunity to present its evidence within a reasonable period of time, we hold otherwise. The records indicate that the Regional State Prosecutor's Office duly received its copy of the application for bail on the very same day that the it was filed with the trial court on October 28, 1992. Counted from said date up to the day of the hearing on November 5, 1992, the prosecution had more than one (1) week to muster such evidence as it would have wanted to adduce in that hearing in opposition to the motion. Certainly, under the circumstances, that period was more than reasonable. The fact that Prosecutor Gingoyon received his copy of the application only on November 6, 1992 is beside the point for, as already established, the Office of the Regional State Prosecutor was authorized to appear for the People. 4. What finally militates against the cause of the prosecutor is the indubitably unreasonable period of time that elapsed before it questioned before the respondent court the resolution and the omnibus order of the trial court through a special civil action for certiorari. The Solicitor General submits that the delay of more than six (6) months, or one hundred eighty-four (184) days to be exact, was reasonable due to the attendant difficulties

which characterized the prosecution of the criminal case against petitioner. But then, the certiorari proceeding was initiated before the respondent court long after trial on the merits of the case had ensued in the court below with the active participation of prosecution lawyers, including Prosecutor Gingoyon. At any rate, the definitive rule now in that the special civil action for certiorari should not be instituted beyond a period of the three months, 38 the same to be reckoned by taking into account the duration of time that had expired from the commission of the acts complained to annul the same. 39 ACCORDINGLY, the judgment of respondent Court of Appeals in CAG.R. SP No. 32233, promulgated on November 24, 1993, annulling the resolution dated November 5, 1992 and the omnibus order dated March 29, 1993 of the Regional Trial Court of Cagayan de Oro City, as well as said respondent court's resolution of April 26, 1994 denying the motion for reconsideration of said judgment, are hereby REVERSED and SET ASIDE. The aforesaid resolution and omnibus order of the Regional Trail Court granting bail to petitioner Miguel P. Paderanga are hereby REINSTATED. SO ORDERED. [G.R. No. 148965. February 26, 2002] JOSE JINGGOY E. ESTRADA, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES and OFFICE OF THE OMBUDSMAN, respondents. DECISION PUNO, J.: A law may not be constitutionally infirm but its application to a particular party may be unconstitutional. This is the submission of the petitioner who invokes the equal protection clause of the Constitution in his bid to be excluded from the charge of plunder filed against him by the respondent Ombudsman. The antecedent facts are as follows: In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the respondent Office of the Ombudsman. On April 4, 2001, the respondent Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act No. 7080 and among the respondents was herein petitioner Jose Jinggoy Estrada, then mayor of San Juan, Metro Manila. The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to respondent Third Division of the Sandiganbayan. The arraignment of the accused was set on July 10, 2001 and no bail for petitioners provisional liberty was fixed. On April 24, 2001, petitioner filed a Motion to Quash or Suspend the Amended Information on the ground that the Anti-Plunder Law, R.A. No. 7080, is unconstitutional and that it charged more than one offense. Respondent Ombudsman opposed the motion. On April 25, 2001, the respondent court issued a warrant of arrest for petitioner and his co-accused. On its basis, petitioner and his co-accused were placed in custody of the law.
21

On April 30, 2001, petitioner filed a Very Urgent Omnibus Motion alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a series or combination of overt or criminal acts as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. Petitioner prayed that he be excluded from the Amended Information and be discharged from custody. In the alternative, petitioner also prayed that he be allowed to post bail in an amount to be fixed by respondent court. On June 28, 2001, petitioner filed a Motion to Resolve Mayor Jose Jinggoy Estradas Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him. On July 3, 2001, petitioner filed a Motion to Strike Out So-Called Entry of Appearance, To Direct Ombudsman To Explain Why He Attributes Impropriety To The Defense And To Resolve Pending Incidents. On July 9, 2001, respondent Sandiganbayan issued a Resolution denying petitioners Motion to Quash and Suspend and Very Urgent Omnibus Motion. Petitioners alternative prayer to post bail was set for hearing after arraignment of all accused. The court held: WHEREFORE, in view of the foregoing, the Court hereby DENIES for lack of merit the following: (1) MOTION TO QUASH AND SUSPEND dated April 24, 2001 filed by accused Jose Jinggoy Estrada; (2) MOTION TO QUASH dated June 7, 2001 filed by accused Joseph Ejercito Estrada; and (3) MOTION TO QUASH (Re: Amended Information dated 18 April 2001) dated June 26, 2001 filed by accused Edward S. Serapio. Considering the denial of the MOTION TO QUASH AND SUSPEND of accused Jose Jinggoy Estrada, his VERY URGENT OMNIBUS MOTION, praying that he be: (1) dropped from the information for plunder for want of probable cause and (2) discharged from custody immediately which is based on the same grounds mentioned in this MOTION TO QUASH AND SUSPEND is hereby DENIED. Let his alternative prayer in said OMNIBUS MOTION that he be allowed to post bail be SET for hearing together with the petition for bail of accused Edward S. Serapio scheduled for July 10, 2001, at 2:00 oclock in the afternoon after the arraignment of all the accused. The following day, July 10, 2001, petitioner moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign petitioner. Petitioner refused to make his plea prompting respondent court to enter a plea of not guilty for him. Hence, this petition. Petitioner claims that respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction in: 1) not declaring that R.A. No. 7080 is unconstitutional on its face and, as applied to petitioner, and denying him the equal protection of the laws; 2) not holding that the Plunder Law does not provide complete and sufficient standards; 3) sustaining the charge against petitioner for alleged offenses, and with alleged conspirators, with which and with whom he is not even remotely connected - contrary to the dictum that criminal liability is personal, not vicarious - results in the denial of substantive due process;

4) not fixing bail for petitioner for alleged involvement in jueteng in one count of the information which amounts to cruel and unusual punishment totally in defiance of the principle of proportionality. We shall resolve the arguments of petitioner in seriatim. I. Petitioner contends that R.A. No. 7080 is unconstitutional on its face and as applied to him and denies him the equal protection of the laws. The contention deserves our scant attention. The constitutionality of R.A. No. 7080, the Anti-Plunder Law, has been settled in the case of Estrada v. Sandiganbayan. We take off from the Amended Information which charged petitioner, together with former President Joseph E. Estrada, Atty. Edward Serapio, Charlie Atong Ang, Yolanda T. Ricaforte and others, with the crime of plunder as follows: AMENDED INFORMATION The undersigned Ombudsman Prosecutor and OIC-Director, EPIB Office of the Ombudsman, hereby accuses former PRESIDENT OF THE PHILIPPINES, Joseph Ejercito Estrada a.k.a. ASIONG SALONGA AND a.k.a JOSE VELARDE, together with Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME JOSE VELARDE AT THE EQUITABLE-PCI BANK.

CONTRARY TO LAW. Manila for Quezon City, Philippines, 18 April 2001 Petitioners contention that R.A. No. 7080 is unconstitutional as applied to him is principally perched on the premise that the Amended Information charged him with only one act or one offense which cannot constitute plunder. He then assails the denial of his right to bail. Petitioners premise is patently false. A careful examination of the Amended Information will show that it is divided into three (3) parts: (1) the first paragraph charges former President Joseph E. Estrada with the crime of plunder together with petitioner Jose Jinggoy Estrada, Charlie Atong Ang, Edward Serapio, Yolanda Ricaforte and others; (2) the second paragraph spells out in general terms how the accused conspired in committing the crime of plunder; and (3) the following four sub-paragraphs (a) to (d) describe in detail the predicate acts constitutive of the crime of plunder pursuant to items (1) to (6) of R.A. No. 7080, and state the names of the accused who committed each act. Pertinent to the case at bar is the predicate act alleged in sub-paragraph (a) of the Amended Information which is of receiving or collecting, directly or indirectly, on several instances, money in the aggregate amount of P545,000,000.00 for illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary benefit x x x. In this sub-paragraph (a), petitioner, in conspiracy with former President Estrada, is charged with the act of receiving or collecting money from illegal gambling amounting to P545 million. Contrary to petitioners posture, the allegation is that he received or collected money from illegal gambling on several instances. The phrase on several instances means the petitioner committed the predicate act in series. To insist that the Amended Information charged the petitioner with the commission of only one act or offense despite the phrase several instances is to indulge in a twisted, nay, pretzel interpretation. It matters little that sub-paragraph (a) did not utilize the exact words combination or series as they appear in R.A. No. 7080. For in Estrada v. Sandiganbayan, we held that where these two terms are to be taken in their popular, not technical, meaning, the word series is synonymous with the clause on several instances. Series refers to a repetition of the same predicate act in any of the items in Section 1 (d) of the law. The word combination contemplates the commission of at least any two different predicate acts in any of said items. Plainly, subparagraph (a) of the Amended Information charges petitioner with plunder committed by a series of the same predicate act under Section 1 (d) (2) of the law. Similarly misleading is petitioners stand that in the Ombudsman Resolution of April 4, 2001 finding probable cause to charge him with plunder together with the other accused, he was alleged to have received only the sum of P2 million, which amount is way below the minimum of P50 million required under R.A. No. 7080. The submission is not borne out by the April 4, 2001 Resolution of the Ombudsman, recommending the filing of charges against petitioner and his co-accused, which in pertinent part reads: Respondent Jose Jinggoy Estrada, the present Mayor of San Juan, Metro Manila, appears to have also surreptitious collection of protection money from jueteng operations in Bulacan. This is gleaned from the statements of Gov. Singson himself and the fact that Mayor Estrada, on at least two occasions, turned over to a certain Emma Lim, an emissary of the respondent governor, jueteng haul totalling P2 million, i.e., P1 million in January, 2000
22

Ejercito Estrada, THEN A PUBLIC OFFICER, BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE ATONG ANG, Jose Jinggoy Estrada, Yolanda T. Ricaforte, Edward Serapio, AN (sic) JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS [P130,000,000.00], more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000] tobacco excise tax share allocated for the Province of Ilocor Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie Atong Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [P189,700,000.00], MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME JOSE VELARDE;

and another P1 million in February, 2000. An alleged listahan of jueteng recipients listed him as one Jingle Bell, as affirmed by Singson [TSN 8 & Dec. 2000 SICt/17 Oct. 2000 SBRC/SCI]. Hence, contrary to the representations of the petitioner, the Ombudsman made the finding that P2 million was delivered to petitioner as jueteng haul on at least two occasions. The P2 million is, therefore, not the entire sum with which petitioner is specifically charged. This is further confirmed by the conclusion of the Ombudsman that: It is clear that Joseph Ejercito Estrada, in confabulation with Jose Jinggoy Estrada, Atty. Edward Serapio and Yolanda Ricaforte, demanded and received, as bribe money, the aggregate sum of P545 million from jueteng collections of the operators thereof, channeled thru Gov. Luis Chavit Singson, in exchange for protection from arrest or interference by law enforcers; x x x. To be sure, it is too late in the day for the petitioner to argue that the Ombudsman failed to establish any probable cause against him for plunder. The respondent Sandiganbayan itself has found probable cause against the petitioner for which reason it issued a warrant of arrest against him. Petitioner then underwent arraignment and is now on trial. The time to assail the finding of probable cause by the Ombudsman has long passed. The issue cannot be resurrected in this petition. II. Next, petitioner contends that the plunder law does not provide sufficient and complete standards to guide the courts in dealing with accused alleged to have contributed to the offense. Thus, he posits the following questions: For example, in an Information for plunder which cites at least ten criminal acts, what penalty do we impose on one who is clearly involved in only one such criminal act? Is it reclusion perpetua? Or should it be a lesser penalty? What if another accused is shown to have participated in three of the ten specifications, what would be the penalty imposable, compared to one who may have been involved in five or seven of the specifications? The law does not provide the standard or specify the penalties and the courts are left to guess. In other words, the courts are called to say what the law is rather than to apply what the lawmaker is supposed to have intended. Petitioner raises these hypothetical questions for he labors hard under the impression that: (1) he is charged with only one act or offense and (2) he has not conspired with the other accused named in sub-paragraphs (b) to (d) of the Amended Information, ergo, the penalty imposable on him ought to be different from reclusion perpetua to death. R.A. No. 7080, he bewails, is cloudy on the imposable penalty on an accused similarly situated as he is. Petitioner, however, overlooks that the second paragraph of the Amended Information charges him to have conspired with former President Estrada in committing the crime of plunder. His alleged participation consists in the commission of the predicate acts specified in sub-paragraph (a) of the Amended Information. If these allegations are proven, the penalty of petitioner cannot be unclear. It will be no different from that of the former President for in conspiracy, the act of one is the act of the other. The imposable penalty is provided in Section 2 of R.A. No. 7080, viz: Section 2. Any public officer who, by himself or in connivance with the members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the
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imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. III. Petitioner also faults the respondent Sandiganbayan for sustaining the charge against petitioner for alleged offenses and with alleged conspirators, with which and with whom he is not even remotely connected contrary to the dictum that criminal liability is personal, not vicarious results in the denial of substantive due process. The Solicitor General argues, on the other hand, that petitioner is charged not only with the predicate act in sub-paragraph (a) but also with the other predicate acts in sub-paragraphs (b), (c) & (d) because he is indicted as a principal and as co-conspirator of the former President. This is purportedly clear from the first and second paragraphs of the Amended Information. For better focus, there is a need to examine again the allegations of the Amended Information vis--vis the provisions of R.A. No. 7080. The Amended Information, in its first two paragraphs, charges petitioner and his other co-accused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Subparagraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts that of ordering the Government Service Insurance System (GSIS) and the Social Security System (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the Jose Velarde account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name Jose Velarde at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080. From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d).

We hold that petitioner can be held accountable only for the predicate acts he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion. We hasten to add, however, that the respondent Ombudsman cannot be faulted for including the predicate acts alleged in sub-paragraphs (a) to (d) of the Amended Information in one, and not in four, separate Informations. A study of the history of R.A. No. 7080 will show that the law was crafted to avoid the mischief and folly of filing multiple informations. The Anti-Plunder Law was enacted in the aftermath of the Marcos regime where charges of ill-gotten wealth were filed against former President Marcos and his alleged cronies. Government prosecutors found no appropriate law to deal with the multitude and magnitude of the acts allegedly committed by the former President to acquire illegal wealth. They also found that under the then existing laws such as the Anti-Graft and Corrupt Practices Act, the Revised Penal Code and other special laws, the acts involved different transactions, different time and different personalities. Every transaction constituted a separate crime and required a separate case and the over-all conspiracy had to be broken down into several criminal and graft charges. The preparation of multiple Informations was a legal nightmare but eventually, thirtynine (39) separate and independent cases were filed against practically the same accused before the Sandiganbayan. R.A. No. 7080 or the Anti-Plunder Law was enacted precisely to address this procedural problem. This is pellucid in the Explanatory Note to Senate Bill No. 733, viz: Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high office for personal enrichment, committed thru a series of acts done not in the public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft but constitute plunder of an entire nation resulting in material damage to the national economy. The above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as a deterrent to those with similar inclination to succumb to the corrupting influence of power. There is no denying the fact that the plunder of an entire nation resulting in material damage to the national economy is made up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a common purpose. In the case at bar, the different accused and their different criminal acts have a commonalityto help the former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of ill-gotten wealth of and/or for former President Estrada. In the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures: (1) the socalled wheel or circle conspiracy, in which there is a single person or group (the hub) dealing individually with two or more other persons or groups (the spokes); and (2) the chain conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business
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operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer. From a reading of the Amended Information, the case at bar appears similar to a wheel conspiracy. The hub is former President Estrada while the spokes are all the accused, and the rim that encloses the spokes is the common goal in the overall conspiracy, i.e., the amassing, accumulation and acquisition of illgotten wealth. IV. Some of our distinguished colleagues would dismiss the charge against the petitioner on the ground that the allegation of conspiracy in the Amended Information is too general. The fear is even expressed that it could serve as a net to ensnare the innocent. Their dissents appear to be inspired by American law and jurisprudence. We should not confuse our law on conspiracy with conspiracy in American criminal law and in common law. Under Philippine law, conspiracy should be understood on two levels. As a general rule, conspiracy is not a crime in our jurisdiction. It is punished as a crime only when the law fixes a penalty for its commission such as in conspiracy to commit treason, rebellion and sedition. In contrast, under American criminal law, the agreement or conspiracy itself is the gravamen of the offense. The essence of conspiracy is the combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means. Its elements are: agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose; and requisite intent necessary to commit the underlying substantive offense. A study of the United States Code ought to be instructive. It principally punishes two (2) crimes of conspiracy conspiracy to commit any offense or to defraud the United States, and conspiracy to impede or injure officer. Conspiracy to commit offense or to defraud the United States is penalized under 18 U.S.C. Sec. 371, as follows: Sec. 371. Conspiracy to commit offense or to defraud the United States. If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons to any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor. Conspiracy to impede or injure officer is penalized under 18 U.S.C. Sec. 372, viz: Sec. 372. Conspiracy to impede or injure officer. If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined not more than $5,000 or imprisoned not more than six years, or both.

Section 371 of 18 U.S.C. punishes two acts: (1) conspiracy to commit any offense against the United States; and (2) conspiracy to defraud the United States or any agency thereof. The conspiracy to commit any offense against the United States refers to an act made a crime by federal laws. It refers to an act punished by statute. Undoubtedly, Section 371 runs the whole gamut of U.S. Federal laws, whether criminal or regulatory. These laws cover criminal offenses such as perjury, white slave traffic, racketeering, gambling, arson, murder, theft, bank robbery, etc. and also include customs violations, counterfeiting of currency, copyright violations, mail fraud, lotteries, violations of antitrust laws and laws governing interstate commerce and other areas of federal regulation. Section 371 penalizes the conspiracy to commit any of these substantive offenses. The offense of conspiracy is generally separate and distinct from the substantive offense, hence, the court rulings that acquittal on the substantive count does not foreclose prosecution and conviction for related conspiracy. The conspiracy to defraud the government refers primarily to cheating the United States out of property or money. It also covers interference with or obstruction of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It comprehends defrauding the United States in any manner whatever, whether the fraud be declared criminal or not. The basic difference in the concept of conspiracy notwithstanding, a study of the American case law on how conspiracy should be alleged will reveal that it is not necessary for the indictment to include particularities of time, place, circumstances or causes, in stating the manner and means of effecting the object of the conspiracy. Such specificity of detail falls within the scope of a bill of particulars. An indictment for conspiracy is sufficient where it alleges: (1) the agreement; (2) the offense-object toward which the agreement was directed; and (3) the overt acts performed in furtherance of the agreement. To allege that the defendants conspired is, at least, to state that they agreed to do the matters which are set forth as the substance of their conspiracy. To allege a conspiracy is to allege an agreement. The gist of the crime of conspiracy is unlawful agreement, and where conspiracy is charged, it is not necessary to set out the criminal object with as great a certainty as is required in cases where such object is charged as a substantive offense. In sum, therefore, there is hardly a substantial difference on how Philippine courts and American courts deal with cases challenging Informations alleging conspiracy on the ground that they lack particularities of time, place, circumstances or causes. In our jurisdiction, as aforestated, conspiracy can be alleged in the Information as a mode of committing a crime or it may be alleged as constitutive of the crime itself. When conspiracy is alleged as a crime in itself, the sufficiency of the allegations in the Information charging the offense is governed by Section 6, Rule 110 of the Revised Rules of Criminal Procedure. It requires that the information for this crime must contain the following averments: 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 given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information. The complaint or information to be sufficient must state the name of the accused, designate the offense given by statute, state the acts or omissions constituting the offense, the name of the offended party, the approximate date of the commission of the offense and the place where the offense was committed.
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Our rulings have long settled the issue on how the acts or omissions constituting the offense should be made in order to meet the standard of sufficiency. Thus, the offense must be designated by its name given by statute or by reference to the section or subsection of the statute punishing it. The information must also state the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. The acts or omissions complained of must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. Every element of the offense must be stated in the information. What facts and circumstances are necessary to be included therein must be determined by reference to the definitions and essentials of the specified crimes. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. The presumption is that the accused has no independent knowledge of the facts that constitute the offense. To reiterate, when conspiracy is charged as a crime, the act of conspiring and all the elements of said crime must be set forth in the complaint or information. For example, the crime of conspiracy to commit treason is committed when, in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. The elements of this crime are: (1) that the offender owes allegiance to the Government of the Philippines; (2) that there is a war in which the Philippines is involved; (3) that the offender and other person or persons come to an agreement to: (a) levy war against the government, or (b) adhere to the enemies, to give them aid and comfort; and (4) that the offender and other person or persons decide to carry out the agreement. These elements must be alleged in the information. The requirements on sufficiency of allegations are different when conspiracy is not charged as a crime in itself but only as the mode of committing the crime as in the case at bar. There is less necessity of reciting its particularities in the Information because conspiracy is not the gravamen of the offense charged. The conspiracy is significant only because it changes the criminal liability of all the accused in the conspiracy and makes them answerable as co-principals regardless of the degree of their participation in the crime. The liability of the conspirators is collective and each participant will be equally responsible for the acts of others, for the act of one is the act of all. In People v. Quitlong, we ruled on how conspiracy as the mode of committing the offense should be alleged in the Information, viz: x x x. In embodying the essential elements of the crime charged, the information must set forth the facts and circumstances that have a bearing on the culpability and liability of the accused so that the accused can properly prepare for and undertake his defense. One such fact or circumstance in a complaint against two or more accused persons is that of conspiracy. Quite unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Where conspiracy exists and can rightly be appreciated, the individual acts done to perpetrate the felony becomes of secondary importance, the act of one being imputable to all the others (People v. Ilano, 313 SCRA 442). Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well. A conspiracy indictment need not, of course, aver all the components of conspiracy or allege all the details thereof, like the part that each of the parties therein have

performed, the evidence proving the common design or the facts connecting all the accused with one another in the web of the conspiracy. Neither is it necessary to describe conspiracy with the same degree of particularity required in describing a substantive offense. It is enough that the indictment contains a statement of facts relied upon to be constitutive of the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in a manner that can enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a subsequent indictment based on the same facts. It is said, generally, that an indictment may be held sufficient if it follows the words of the statute and reasonably informs the accused of the character of the offense he is charged with conspiring to commit, or, following the language of the statute, contains a sufficient statement of an overt act to effect the object of the conspiracy, or alleges both the conspiracy and the contemplated crime in the language of the respective statutes defining them (15A C.J.S. 842-844). x x x. Conspiracy arises when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. Conspiracy comes to life at the very instant the plotters agree, expressly or impliedly, to commit the felony and forthwith to actually pursue it. Verily, the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the accused. Such an allegation, in the absence of the usual usage of the words conspired or confederated or the phrase acting in conspiracy, must aptly appear in the information in the form of definitive acts constituting conspiracy. In fine, the agreement to commit the crime, the unity of purpose or the community of design among the accused must be conveyed such as either by the use of the term conspire or its derivatives and synonyms or by allegations of basic facts constituting the conspiracy. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it. In establishing conspiracy when properly alleged, the evidence to support it need not necessarily be shown by direct proof but may be inferred from shown acts and conduct of the accused. Again, following the stream of our own jurisprudence, it is enough to allege conspiracy as a mode in the commission of an offense in either of the following manner: (1) by use of the word conspire, or its derivatives or synonyms, such as confederate, connive, collude, etc; or (2) by allegations of basic facts constituting the conspiracy in a manner that a person of common understanding would know what is intended, and with such precision as would enable the accused to competently enter a plea to a subsequent indictment based on the same facts. The allegation of conspiracy in the information must not be confused with the adequacy of evidence that may be required to prove it. A conspiracy is proved by evidence of actual cooperation; of acts indicative of an agreement, a common purpose or design, a concerted action or concurrence of sentiments to commit the felony and actually pursue it. A statement of this evidence is not necessary in the information. In the case at bar, the second paragraph of the Amended Information alleged in general terms how the accused committed the crime of plunder. It used the words in connivance/conspiracy with his co-accused. Following the ruling in Quitlong, these words are sufficient to allege the conspiracy of the accused with the former President in committing the crime of plunder. V.

We now come to petitioners plea for bail. On August 14, 2002, during the pendency of the instant petition before this Court, petitioner filed with respondent Sandiganbayan an Urgent Second Motion for Bail for Medical Reasons. Petitioner prayed that he be allowed to post bail due to his serious medical condition which is life-threatening to him if he goes back to his place of detention. The motion was opposed by respondent Ombudsman to which petitioner replied. For three days, i.e., on September 4, 20 and 27, 2001, respondent Sandiganbayan conducted hearings on the motion for bail. Dr. Roberto V. Anastacio, a cardiologist of the Makati Medical Center, testified as sole witness for petitioner. On December 18, 2001, petitioner filed with the Supreme Court an Urgent Motion for Early/Immediate Resolution of Jose Jinggoy Estradas Petition for Bail on Medical/Humanitarian Considerations. Petitioner reiterated the motion for bail he earlier filed with respondent Sandiganbayan. On the same day, we issued a Resolution referring the motion to respondent Sandiganbayan for resolution and requiring said court to make a report, not later than 8:30 in the morning of December 21, 2001. On December 21, 2001, respondent court submitted its Report. Attached to the Report was its Resolution dated December 20, 2001 denying petitioners motion for bail for lack of factual basis. Basing its finding on the earlier testimony of Dr. Anastacio, the Sandiganbayan found that petitioner failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail. The crime of plunder is punished by R.A. No. 7080, as amended by Section 12 of R.A. No. 7659, with the penalty of reclusion perpetua to death. Under our Rules, offenses punishable by death, reclusion perpetua or life imprisonment are non-bailable when the evidence of guilt is strong, to wit: Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Section 7, Rule 114 of the Revised Rules of Criminal Procedure is based on Section 13, Article III of the 1987 Constitution which reads: Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required. The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt. This Court is not in a position to grant bail to the petitioner as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that
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evidence on petitioners guilt was presented before the lower court. Upon proper motion of the petitioner, respondent Sandiganbayan should conduct hearings to determine if the evidence of petitioners guilt is strong as to warrant the granting of bail to petitioner. IN VIEW WHEREOF, the petition is dismissed for failure to show that the respondent Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. SO ORDERED.

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