Crim Cases General Principles

Criminal Law 1 Cases (General Principles)
Republic of the Philippines The CA summarized the factual antecedents as follows:

SUPREME COURT
Manila Appellant was the only Revenue Collection Agent of the Bureau of
Internal Revenue (BIR), Revenue District 3, in San Fernando, La
FIRST DIVISION Union from 1993-1995. Among his duties was toreceive tax
payments for which BIR Form 25.24 or the revenue official
G.R. No. 176317 July 23, 2014 receipts (ROR) were issued. The original of the ROR was then
given to the taxpayer while a copy thereof was retained by the
MANOLITO GIL Z. ZAFRA, Petitioner, collection officer.
vs.
PEOPLE OF THE PHILIPPINES, Respondent. Every month, appellant submitted BIR Form 12.31 of the Monthly
Report of Collections (MRC) indicating the numbers of the issued
DECISION RORs, date of collection, name of taxpayer,the amount
collectedand the kind of tax paid. The original copy of the MRC
BERSAMIN, J.: with the attached triplicate copy of the issued RORs was submitted
to the Regional Office of the Commission on Audit (COA).
In convicting an accused of the complex crime of malversation of
public fund!: through falsification of a public document, the courts The Assessment Division of the BIR Regional Office, likewise, kept
shall impose the penalty for the graver felony in the maximum a copy of the duplicate original of the Certificate Authorizing
period pursuant to Article 48 of the Revised Penal Code, plus fine Registration (CAR) relating to the real property transactions,
in the amount of the funds malversed or the total value of the which contained, among other data, the number of the issued ROR,
property embezzled. In addition, the courts shall order the its date, name of payor, and the amount the capital gains tax and
accused to return to the Government the funds malversed, or the documentary stamp tax paid.
value of the property embezzled.
On 06 July 1995, an audit team composed of Revenue Officers
The Case Helen D. Rosario, Maria Lourdes G.Morada, Marina B. Magluyan
and Norma Duran, all from the central office of the BIR, was tasked
This appeal by petition for review on certiorari is taken from the to audit the cash and non-cash accountabilities of the appellant.
judgment promulgated on August 16, 2006, 1 whereby the Court of
Appeals affirmed the consolidated decision rendered on February Among the documents reviewed by the audit team were the CARs
17, 2004 by the Regional Trial Court (RTC) in San Fernando, La furnished by the Assessment Division ofthe BIR; triplicate copies
Union in Criminal Cases Nos. 4634 to Nos. 4651, inclusive, 2 finding of the RORs attached to the MRCs submitted by appellant to COA;
Manolito Gil Z. Zafra, a Revenue Collection Agent of the Bureau of and appellant’s MRCs provided by the Finance Division of the BIR.
Internal Revenue (BIR) assigned in Revenue District 3 in San The audit team likewise requested and was given copies of the
Fernando, La Union guilty of 18 counts of malversation of public RORs issued to the San Fernando, La Union branch of the
funds through falsification of public documents.3 Philippine National Bank (PNB). A comparison of the entries in
said documents revealed that the data pertaining to 18 RORs with
Antecedents the same serial number, i.e., (a) 1513716, (b) 1513717, (c)
1
1513718, (d) 1513719, (e) 1529758, (f) 2016733, (g) 2018017, restitute the total amount of Php614,151.93. Appellant ignored the
(h) 2018310, (i) 2023438, (j) 2023837, (k) 2617653, (l) 2617821, letter, thus, prompting the institution of the 18 cases for
(m) 2627973, (n) 3095194, (o) 3096955, (p) 3097386, (q) malversation of public funds through falsification of public
3503336, (r) 4534412, vary with respect to the name of the document against him."4
taxpayer, the kind of tax paid, the amount of tax and the date of
payment. Of particular concern to the audit team were the lesser On his part, the petitioner tendered the following version, to wit:
amounts of taxes reported in appellant’s MRCs and the attached
RORs compared to the amount reflected in the CARs and PNB’s Appellant denied that he committed the crimes charged. He
RORs. averred that as Revenue Collection Officer of San Fernando, La
Union, he never accepted payments from taxpayers nor issued the
The CARs showed that documentary stamp tax and capital gains corresponding RORs. It was his subordinates, Andrew Aberin and
tax for ROR Nos. 1513716, 1513717, 1513718, 1513719, 2018017, Rebecca Supsupin, who collected the taxes and issued the
and 2023438 totalled Php114,887.78, while the MRCs and COA’s corresponding RORs. To substantiate his claim, he presented
copies of the RORs submitted by appellant, the sum of the taxes Manuel Meris, who testified that when he paid capital gains tax, at
collected was only Php227.00, or a difference of Php114,660.78. the district office of BIR in Sam Fernando, La Union, it was a female
ROR Nos. 2018017 and 2023438, mentioned in CAR as duly issued BIR employee who received the payment and issued Receipt No.
to taxpayers and for which taxes were paid, were reported in the 2023438. Likewise, Arturo Suyat, messenger of PNB from 1979 to
MRC as cancelled receipts. 1994, testified that when he made the payments to the same BIR
office, it was not appellant who received the payments nor issued
Likewise, PNB’s RORs bearing Serial Nos. 1529758, 2016733, the corresponding receipts but another unidentified BIR
2018310, 2023837, 2617653. 2617821, 2627973, 3095194, employee."5
3096955, 3097386, 3503336, and 4534412, show that it paid the
total sum of Php500,606.15, as documentary stamp tax. Yet, Decision of the RTC
appellant’s MRCs yielded only the total sum of Php1,115.00, for
the same RORs, or a difference of Php499,491.15. On February 17, 2004, the RTC rendered its consolidated decision
convicting the petitioner of 18 counts of malversation of public
The subject 18 RORs were the accountability of appellant as funds through falsification of public documents, 6 decreeing as
shown in his Monthly Reports of Accountability (MRA) or BIR follows:
Form 16 (A). The MRA contains, among others, the serial numbers
of blank RORs received by the collection agent from the BOR as WHEREFORE, the Court finds the accused GUILTY of the crime
well as those issued by him for a certain month. with which he is charged in:
In sum, although the RORs bear the same serial numbers, the total 1) Criminal Case No. 4634 and sentences him to suffer the
amount reflected in the CARs and PNB’s 12 copies of RORs is indeterminate penalty of 10 years and 1 day of prision
Ph₱615,493.93, while only Php1,342.00 was reported as tax mayoras minimum up to 14 years, 8 months and 1 day of
collections in the RORs’ triplicate copies submittedby appellant to reclusion temporalas maximum; to suffer perpetual special
COA and in his MRCs, or a discrepancy of Php614,151.93, Thus, the disqualification; and to pay a fine of ₱19,775.00;
audit team sent to appellant a demand letter requiring him to
2
2) Criminal Case No. 4635 and sentences him to suffer the mayoras minimum up to 17 years, 4 months and 1 day of
indeterminate penalty of 2 years, 4 months and 1 day of reclusion temporalas maximum; to suffer perpetual special
prision correccionalas minimum up to 6 years and 1 day of disqualification; and to pay a fine of ₱38,878.55;
prision mayoras maximum; to suffer perpetual special
disqualification; and to pay a fine of ₱4,869.00; 9) Criminal Case No. 4642and sentences him to suffer the
indeterminate penalty of 10 years and one 1 day of prision
indeterminate penalty of 10 years and 1 day of prision reclusion temporal as maximum; to suffer perpetual special
mayoras minimum up to 14 years, 8 months and 1 day of disqualification; and to pay a fine of ₱20,286.88;
reclusion temporalas maximum; to suffer perpetual special
disqualification; and to pay a fine of ₱13,260.90; 10) Criminal Case No. 4643 and sentences him to suffer the
indeterminate penalty of 10 years and 1 day of prision reclusion temporalas maximum; to suffer perpetual special
mayoras minimum up to 10 years and 1 day of prision disqualification; and to pay a fine of ₱40,598.40;
mayoras maximum; to suffer perpetual special
mayoras minimum up to 10 years and 1 day of prision disqualification; and to pay a fine of ₱42,140.45;
mayoras maximum; to suffer perpetual special
indeterminate penalty of 10 years and 1 one day of prision
3
reclusion temporalas maximum; to suffer perpetual special THAT HE WAS NEGLIGENT IN THE PERFORMANCE OF HIS
disqualification; and to pay a fine of ₱52,740.66; OFFICIAL DUTIES.
15) Criminal Case No. 4648 and sentences him to suffer the II. x x x IN TAKING IT AGAINST THE ACCUSED THE
indeterminate penalty of 10 years and one 1 day of prision FAILURE TO FILE AND PROSECUTE PERSONS WHO COULD
mayoras minimum up to 17 years, 4 months and 1 day of HAVE POSSIBLY COMMITTED THE CRIMES CHARGED.
disqualification; and to pay a fine ₱75,489.76; III. x x x IN FINDING THAT ALL THE ESSENTIAL ELEMENTS
OF THE CRIMES CHARGED ARE PRESENTED IN THIS CASE.
16) Criminal Case No. 4649 and sentences him to suffer the
indeterminate penalty of 10 years and one 1 day of prision IV. x x x WHEN IT DID NOT DECIDE TO ACQUIT THE
mayoras minimum up to 17 years, 4 months and 1 day of ACCUSED BASED ON REASONABLE DOUBT.7
disqualification; and to pay a fine of ₱54,948.47; On August 16, 2006, the CA promulgated its assailed judgment
affirming the conviction of the petitioner and the penalties
17) Criminal Case No. 4650 and sentences him to suffer the imposed by the RTC,8 observing that he had committed
indeterminate penalty of 10 years and one 1 day of prision falsification through his submission of copies of falsified MRCs and
mayoras minimum up to 17 years, 4 months and 1 day of had tampered revenue receipts to the BIR and COA; 9 that he was
reclusion temporalas maximum; to suffer perpetual special presumed to be the forger by virtue of his being in the possession
disqualification; and to pay fine of ₱45,330.18; 18) Criminal of such public documents;10 and that he had certified to the MRAs
Case No. 4651and sentences him to suffer the and had actually issued the tampered receipts.11
mayoras minimum up to 17 years, 4 months and 1 day of Anent the malversation, the CA opined:
disqualification; and to pay a fine of ₱37,842.05; All the elements of malversation obtain in the present case.
Appellant was the Revenue Collection Agent of the BIR. As such,
And to pay costs. through designated collection clerks, hecollected taxes and issued
the corresponding receipts for tax payments made by taxpayers.
SO ORDERED. He was accountable for the proper and authorized use and
application of the blank RORs issued by the BIR District Office, not
Judgment of the CA the least for the tax payments received in the performance of his
duties. The unexplained shortage in his remittances of the taxes
On appeal, the petitioner asserted that the RTC had erred as collected as reflected in the CARs and PNB’s receipts, even in the
follows: absence of direct proof of misappropriation, made him liable for
malversation. The audit team’s demand letter to appellant, which
I. x x x IN FINDING THE ACCUSED GUILTY OF he failed to rebut, raised a prima facie presumption that he put to
MALVERSATION OF PUBLIC FUNDS THRU FALSIFICATION his personal use the missing funds.12
OF PUBLIC DOCUMENTS BASED ON THE PRESUMPTION
4
The CA explained that even if it were to subscribe to the Ruling

petitioner’s insistence that it had been his assistants, not him, who
had collected the taxes and issued the RORs, he was nonetheless We DENY the petition for review for its lack of merit.
liable,13 because his duty as an accountable officer had been to
strictly supervise his assistants;14 and that by failing to strictly The RTC stated in its decision convicting the petitioner, viz:
supervise them he was responsible for the shortage resulting from
the non-remittance of the actual amounts collected. 15 The particular pages of the Monthly Reports from which witness
Magluyan based her examination to determine the discrepancies
After the CA denied his motion for reconsideration by its in the Official Receipts listed by the accused therein, bore only the
resolution16 promulgated on January 11, 2007, the petitioner typewritten name of the accused without any signature. However,
appeals via petition for review on certiorari. prosecution witness Rebecca Rillorta showed that those individual
pages were part of a number of pages of a report submitted for a
Issues particular month, and she showed that the last pages of the related
reports were duly signed by the accused. Witness Rillorta brought
The petitioner claims that the CA erred: to the Court the original pages of the questioned monthly reports
and demonstrated to the Court the sequence of the pagination and
I. x x x IN FINDING THAT THE PETITIONER WAS the last pages ofthe monthly reports bearing the signature of
NEGLIGENT YET HE WAS CONVICTED OF THE CRIME OF accused Zafra x x x. By these the prosecution demonstrated that
MALVERSATION OF PUBLIC FUNDS THROUGH the individual pages of the Monthly Collection Report which listed
FALSIFICATION OF PUBLIC [DOCUMENTS]. receipts for lesser amounts were part of official reports regularly
submitted by the accused in his capacity as Collection Agent of the
II. x x x IN APPLYING THE RULE OF COMMAND BIR in San Fernando City, La Union. While counsel for accused
RESPONSIBILITY IN A COMPLEX CRIME OF called attention to the absence of accused (sic) signatures on
MALVERSATION OF PUBLIC FUNDS THROUGH Exhibit "A", accused did not deny the monthly report[s] and the
FALSIFICATION OF PUBLIC DOCUMENTS. exhibits as he chose to remain silent.
III. x x x IN FINDING THAT PETITIONER IS GUILTY OF In addition, Maria Domagas, State Auditor of the BIR showed
NEGLIGENCE.17 Monthly Report of Accountabilities (Exhibit "D") which the
accused, as Collection Officer submits on the first week of the
The petitioner contends that the RTC and the CA erroneously following month for a particular month. The testimony of Maria
convicted him of several counts of malversation of public funds Domagas establishes that the questionable receipts were within
through falsification of public documents on the basis of the the series of receipts accountability of accused for a particular
finding that he had been negligent in the performance of his duties month. x x x. The testimony of State Auditor Domagas established
as Revenue District Officer;18 that the acts imputed to him did not the link of accused accountable receipts, with the receipts
constitute negligence; and that he could not be convicted of numbers reported in his Monthly Collection Report as well as to
intentional malversation and malversation through negligence at the receipts issued to the taxpayers. Thereby prosecution showed
the same time.19 that while the receipts issued to the taxpayer were not signed by
the accused, these receipts were his accountable forms. Such that
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the use thereof is presumed to be sourced from him. Even the beenmerely negligent. The passage was nothing but a brief
defense witness admitted that the receipts emanated from the forensic discourse on the legal consequence if his defense were
office of the accused. favorably considered, and was notthe basis for finding him guilty.
To attach any undue significance to such discourse is to divert
Notably, there is a big disparity between the amount covered by attention away from the firmness of the finding of guilt. It cannot
BIR Form No. 25.24 issued to the taxpayer, and the amount for the be denied, indeed, that the RTC did not give any weight to his
same receipt number appearing in the Monthly Collection Reports position.
indicating the falsification resorted to by the accused in the official
reports he filed, thereby remitting less than what was collected Initially, the CA’s disquisition regarding malversation through
from taxpayers concerned, resulting tothe loss of revenue for the negligence had the same tenor as that of the RTC’s, 22 and later on
government as unearthed by the auditors."20 (Emphasis and even went to the extent of opining that the petitioner ought to be
underscoring supplied) held guilty of malversation through negligence.23 But such opinion
on the part of the CA would not overturn his several convictions
The findings of fact of the RTC were affirmed by the CA. Hence, the for the intentional felonies of malversation of public funds through
petitioner was correctly convicted of the crimes charged because falsification of public documents. As can be seen, both lower courts
such findings of fact by the trial court, being affirmed by the CA as unanimously concluded that the State’s evidence established his
the intermediate reviewing tribunal, are now binding and guilt beyond reasonable doubt for malversation of public funds
conclusive on the Court. Accordingly, we conclude that the through falsification of public documents. Their unanimity rested
Prosecution sufficiently established that the petitioner had on findings of fact that are nowbinding on the Court after he did
beenthe forger of the falsified and tampered public documents, not bring to our attention any fact or circumstance that either
and that the falsifications of the public documents had been lower court had not properly appreciated and considered and
necessary to committhe malversations of the collected taxes. which, if so considered, could alter the outcome in his favor. At any
rate, even if it were assumed that the findings by the CA warranted
Anent the petitioner’s defense that it was his subordinates who his being guilty only of malversation through negligence, the Court
had dealt with the taxpayers and who had issued the falsified and would not be barred from holding him liable for the intentional
tampered receipts, the RTC fittingly ruminated: crime of malversation of public funds through falsification of
public documents because his appealing the convictions kept the
x x x If this Court were to believethat the criminal act imputed to door ajar for an increase in his liability. It is axiomatic that by
the accused were done by the employees blamed by the accused, appealing he waived the constitutional protection against double
the presumption of negligence by the accused with respect to his jeopardy, leaving him open to being convicted of whatever crimes
duties as such would attach; and under this presumption, accused the Court would ultimately conclude from the records to have
would still not avoid liability for the government loss. 21 (Italics been actually committed by him within the terms of the allegations
supplied) in the informations under which he had been arraigned.
The petitioner relies on this passage of the RTC’s ruling to buttress Yet, we see an obvious need to correct the penalties imposed on
his contention that he should be found guilty of malversation the petitioner. He was duly convicted of 18 counts of malversation
through negligence. His reliance is grossly misplaced, however, of public funds through falsification of public documents, all
because the RTC did not thereby pronounce that he had complex crimes. Pursuant to Article 48 of the Revised Penal
6
Code,24 the penalty for each count is that prescribed on the more exceeds the latter, the penalty shall be reclusion temporalin
serious offense, to be imposed in its maximum period. Falsification its maximum period to reclusion perpetua.
of a public document by a public officer is penalized with prision
mayor and a fine not to exceed ₱5,000.00. 25 Prision mayor has a In all cases, persons guilty of malversation shall also suffer the
duration of six years and one day to 12 years of imprisonment. 26 In penalty of perpetual special disqualification and a fine equal to the
contrast, the penalty for malversation ranges from prision amount of the funds malversed or equal tothe total value of the
correccional in its medium and maximum periods to reclusion property embezzled. x x x x
temporal in its maximum period to reclusion perpetua depending
on the amount misappropriated, and a fine equal to the amount of To determine the maximum periods of the penalties tobe imposed
the funds malversed or to the total value of the property on the petitioner, therefore, we must be guided by the following
embezzled, to wit: rules, namely: (1) the penalties provided under Article 217 of the
Revised Penal Code constitute degrees; and (2) considering that
Article 217. Malversation of public funds or property; the penalties provided under Article 217 of the Revised Penal
Presumption of malversation. — Any public officer who, by reason Codeare not composed of three periods, the time included in the
of the duties of his office, is accountable for public funds or penalty prescribed should be divided into three equal portions,
property, shall appropriate the same or shall take or which each portion forming one period, pursuant to Article 65 of
misappropriate or shall consent, through abandonment or the Revised Penal Code.27
negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be guilty Accordingly, the penalties prescribed under Article 217 of the
of the misappropriation or malversation of such funds or property, Revised Penal Code should be divided into three periods, with the
shall suffer: maximum period being the penalty properly imposable on each
count, except in any instance where the penalty for falsification
1. The penalty of prision correccionalin its medium and would be greater than such penalties for malversation. The
maximum periods, if the amount involved in the tabulation of the periods of the penalties prescribed under Article
misappropriation or malversation does not exceed two 217 of the Revised Penal Code follows, to wit:
hundred pesos.
[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?
2. The penalty of prision mayorin its minimum and medium file=/jurisprudence/2014/july2014/176317.pdf]]
periods, if the amount involved is more than two hundred
pesos but does not exceed six thousand pesos. TABLE 1 (see “Tables 1-3 Zafra v. People” doc file)
3. The penalty of prision mayorin its maximum period to Under Section 1 of the Indeterminate Sentence Law, an
reclusion temporalin its minimum period, if the amount indeterminate sentence is imposed on the offender consisting of a
involved is more than six thousand pesos but is less than maximum term and a minimum term.28 The maximum term is the
twelve thousand pesos. 4. The penalty of reclusion penalty under the Revised Penal Code properly imposed after
temporal, in its medium and maximum periods, if the considering any attending circumstance; while the minimum term
amount involved is morethan twelve thousand pesos but is is within the range of the penalty next lower than that prescribed
less than twenty-two thousand pesos. If the amount by the Revised Penal Codefor the offense committed.
7
The Indeterminate Sentence Lawwas applicable here, save for the applicable in Criminal Case No. 4635 involving ₱4,869.00 due to its
counts for which the imposable penalty was reclusion perpetua. being the higher penalty.
Considering that each count was a complex crime without any
modifying circumstances, the maximum term of the penalty for The Court now tabulates the corrected indeterminate sentences, to
each count is the maximum period as shown in Table 1, supra, wit:
except for the count dealt with in Criminal Case No. 4635 involving
the misappropriated amount of ₱4,869.00, for which the TABLE 3 (see “Tables 1-3 Zafra v. People” doc file)
corresponding penalty for malversation as stated in Table 1 was
prision mayorin its minimum and medium periods. However, One more omission by the CA and the RTC concerned a matter of
because such penalty for malversation was lower than the penalty law. This refers to their failure to decree in favor of the
of prision mayor imposable on falsification of a public document Government the return of the amounts criminally misappropriated
under Article 171 of the Revised Penal Code, it is the penalty of by the accused. That he was already sentenced to pay the fine in
prision mayor in its maximum period that was applicable. each count was an element of the penalties imposed under the
Revised Penal Code, and was not the same thing as finding him
On other hand, the minimum of the indeterminate sentence for civilly liable for restitution, which the RTC and the CA should have
each count should come from the penalty next lower than that included in the judgment. Indeed, as the Court emphasized in
prescribed under Article 217 of the Revised Penal Code, except in Bacolod v. People,30 it was "imperative that the courts prescribe
Criminal Case No. 4635 where the penalty next lower is prision the proper penalties when convicting the accused, and determine
correccional in its full range, to wit: the civil liability to be imposed on the accused, unless there has
been a reservation of the action to recover civil liability or a
TABLE 2 (see “Tables 1-3 Zafra v. People” doc file) waiver of its recovery," explaining the reason for doing so in the
following manner:
To illustrate, the count involving the largest amount
misappropriated by the accused totaling ₱75,489.76 merited the It is not amiss to stress that both the RTC and the CA disregarded
penalty of reclusion temporal in its maximum period to reclusion their express mandate under Section 2, Rule 120 of the Rules of
perpetua, and a fine of ₱75,489.76. Obviously, the penalty is that Courtto have the judgment, if it was of conviction, state: "(1) the
prescribed for malversation of public funds, the more serious legal qualification of the offense constituted by the acts committed
offense. by the accused and the aggravating or mitigating circumstances
which attended its commission; (2) the participation of the
In its consolidated decision of February 17, 2004, the RTC erred in accused in the offense, whether as principal, accomplice, or
pegging the maximum terms within the minimum periods of the accessory after the fact; (3) the penalty imposed upon the accused;
penalties prescribed under Article 217 of the Revised Penal Code. and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party,
It committed another error by fixing indeterminate sentences on if there is any, unless the enforcement of the civil liability by a
some counts despite the maximum of the imposable penalties separate civil action has been reserved or waived." Their disregard
being reclusion perpetua. There is even one completely incorrect compels us to actas we now do lest the Court be unreasonably
indeterminate sentence. And, as earlier noted, the penalty for seen as tolerant of their omission. That the Spouses Cogtas did not
falsification under Article 171 of the Revised Penal Code was themselves seek the correction of the omission by an appeal is no
8
hindrance to this action because the Court, as the final reviewing 1) Criminal Case No. 4634 and sentences him to suffer the
tribunal, has not only the authority but also the duty to correct at indeterminate penalty from 10 years and one day of prision
any time a matter of law and justice. mayor, as minimum, to 18 years, two months and 21 days of
reclusion temporal, as maximum; and to pay a fine of
We also pointedly remind all trial and appellate courts to avoid ₱19,775.00;
omitting reliefs that the parties are properly entitled to by law or
in equity under the established facts. Their judgments will not be 2) Criminal Case No. 4635 and sentences him to suffer the
worthy of the name unless they thereby fully determine the rights indeterminate penalty from two years of prision correccional,
and obligations of the litigants. It cannot be otherwise, for only by as minimum, to 10 years and one day of prision mayor, as
a full determination of such rights and obligations would they maximum; and to pay a fine of ₱5,000.00;
betrue to the judicial office of administering justice and equity for
all. Courts should then be alert and cautious in their rendition of 3) Criminal Case No. 4636 and sentences him to suffer the
judgments of conviction in criminal cases. They should prescribe indeterminate penalty from 10 years and one day of prision
the legal penalties, which is what the Constitution and the law mayor, as minimum, to 18 years, two months and 21 days of
require and expect them to do. Their prescription of the wrong reclusion temporal, as maximum; and to pay a fine of
penalties will be invalid and ineffectual for being done without ₱13,260.90;
jurisdiction or in manifest grave abuse of discretion amounting to
lack of jurisdiction. They should also determine and set the civil 4) Criminal Case No. 4637 and sentences him to suffer the
liability ex delictoof the accused, in order to do justice to the indeterminate penalty from 10 years and one day of prision
complaining victims who are always entitled to them. The Rules of mayor, as minimum, to 18 years, two months and 21 days of
Court mandates them to do so unless the enforcement of the civil reclusion temporal, as maximum; and to pay a fine of
liability by separate actions has been reserved or waived. 31 ₱17,419.00;
In addition, the amounts to be returned to the Government as civil 5) Criminal Case No. 4638and sentences him to suffer the
liability of the accused in each count shall earn interest of 6% per indeterminate penaltyfrom 10 years and one day of prision
annum reckoned from the finality of this decision until full mayor, as minimum, to 13 years, one month and 11 days of
payment by the accused.1âwphi1 reclusion temporal, as maximum; and to pay a fine of
₱11,309.20;
WHEREFORE, the Court AFFIRMS the decision promulgated on
August 16, 2006 by the Court of Appeals subject to the 6) Criminal Case No. 4639 and sentences him to suffer the
modification of the penalties imposed as stated in this decision. indeterminate penalty from 10 years and one day of prision
mayor, as minimum, to 13 years, one month and 11 days of
ACCORDINGLY, the dispositive portion of the consolidated reclusion temporal, as maximum; and to pay a fine of
decision rendered on February 17, 2004 by the Regional Trial ₱9,736.86;
Court is hereby AMENDED to read as follows:
7) Criminal Case No. 4640 and sentences him to suffer
WHEREFORE, the Court finds the accused GUILTY of the crime reclusion perpetua; and to pay a fine of ₱39,050.00;
with which he is charged in:
9
8) Criminal Case No. 4641 and sentences him to suffer from the finality of this decision until full payment, by way of his
reclusion perpetua; and to pay a fine of ₱38,878.55; civil liability.
9) Criminal Case No. 4642 and sentences him to suffer the The accused shall further pay the costs of suit.
indeterminate penalty from 10 years and one day of prision
mayor, as m inimum, to 18 years, two months and 21 days of SO ORDERED.
reclusion temporal, as maximum; and to pay a fine of
₱20,286.88; SO ORDERED.
10) Criminal Case No. 4643 and sentences him to suffer LUCAS P. BERSAMIN
reclusion perpetua; and to pay a fine of ₱42,573.97; Associate Justice
11) Criminal Case No. 4644 and sentences him to suffer WE CONCUR:
reclusion perpetua; and to pay a fine of ₱40,598.40;
MARIA LOURDES P. A. SERENO
12) Criminal Case No. 4645 and sentences him to suffer Chief Justice
TERESITA J. LEONARDO-DE
MARTIN S. VILLARAMA, JR.
13) Criminal Case No. 4646 and sentences him to suffer CASTRO
Associate Justice
reclusion perpetua; and to pay a fine of ₱47 ,902.60; Associate Justice
14) Criminal Case No. 4647 and sentences him to suffer BIENVENIDO L. REYES
reclusion perpetua; and to pay a fine of ₱52, 7 40.66; Associate Justice
15) Criminal Case No. 4648 and sentences him to suffer CERTIFICATION
reclusion perpetua; and to pay a fine of ₱75,489. 76;
Pursuant to Section 13, Article VIII of the Constitution, I certify
16) Criminal Case No. 4649 and sentences him to suffer that the conclusions in the above Decision had been reached in
reclusion perpetua; and to pay a fine of ₱54,948.47; consultation before the case was assigned to the writer of the
opinion of the Court's Division.
reclusion perpetua; and to pay a fine of ₱45,330.18; MARIA LOURDES P. A. SERENO
Chief Justice
In addition, the accused shall pay to the Government the total

amount of ₱614,268.73, plus interest of 6% per annum reckoned
10
Republic of the Philippines That on or about the 13th day of July, 2009, in the City of Angeles,
SUPREME COURT Philippines, and within the jurisdiction of this Honorable Court,
Manila the above-named accused, being then the boyfriend of the
complainant, x x x did then and there willfully, unlawfully and
SECOND DIVISION feloniously use personal violence on the complainant, by pulling
her hair, punching complainant’s back, shoulder and left eye,
G.R. No. 193960 January 7, 2013 thereby demeaning and degrading the complainant’s intrinsic
worth and dignity as a human being, in violation of Section 5(a) of
KARLO ANGELO DABALOS y SAN DIEGO, Petitioner, the Republic Act 9262.4
vs.
REGIONAL TRIAL COURT,BRANCH 59, ANGELES CITY After examining the supporting evidence, the RTC found probable
(PAMPANGA), REPRESENTED BY ITS PRESIDING JUDGE MA. cause and consequently, issued a warrant of arrest against
ANGELICA T. PARAS-QUIAMBAO; THE OFFICE OF THE CITY petitioner on November 19, 2009. The latter posted a cash bond
PROSECUTOR, ANGELES CITY (PAMPANGA); AND for his provisional liberty and on August 12, 2010, filed a Motion
1
ABC, Respondents. for Judicial Determination of Probable Cause with Motion to Quash
the Information. Petitioner averred that at the time of the alleged
DECISION incident on July 13, 2009, he was no longer in a dating relationship
with private respondent; hence, RA 9262 was inapplicable.
PERLAS-BERNABE, J.:
In her affidavit, private respondent admitted that her relationship
The Court will not read into Republic Act (RA) No. 9262 a with petitioner had ended prior to the subject incident. She
provision that would render it toothless in the pursuit of the narrated that on July 13, 2009, she sought payment of the money
declared policy of the State to protect women and children from she had lent to petitioner but the latter could not pay. She then
violence and threats to their personal safety and security. inquired from petitioner if he was responsible for spreading
rumors about her which he admitted. Thereupon, private
Before the Court is a petition for certiorari and prohibition respondent slapped petitioner causing the latter to inflict on her
assailing the Orders dated September 13, 2010 2 and October 5, the physical injuries alleged in the Information.
20103 of the Regional Trial Court (RTC) of Angeles City, Branch 59
in Criminal Case No. 09-5210 which denied petitioner’s Motion for The RTC Ruling
Judicial Determination of Probable Cause with Motion to Quash
the Information. The RTC denied petitioner’s motion. It did not consider material
the fact that the parties’ dating relationship had ceased prior to the
The Facts incident, ratiocinating that since the parties had admitted a prior
dating relationship, the infliction of slight physical injuries
Petitioner was charged with violation of Section 5(a) of RA 9262 constituted an act of violence against women and their children as
before the RTC of Angeles City, Branch 59, in an Information which defined in Sec. 3(a) of RA 9262.
states:
Issues
11
Hence, the instant petition raising the following issues: 1) whether relationship or with whom he has a common child; and 2) it
the RTC has jurisdiction over the offense; 2) whether RA 9262 results in or is likely to result in physical harm or suffering.
should be construed in a manner that will favor the accused; and
3) whether the Information alleging a fact contrary to what has In Ang v. Court of Appeals, 5 the Court enumerated the elements of
been admitted should be quashed. the crime of violence against women through harassment, to wit:
The Court’s Ruling 1. The offender has or had a sexual or dating relationship
with the offended woman;
The petition has no merit.
2. The offender, by himself or through another, commits an
Petitioner insists that the act which resulted in physical injuries to act or series of acts of harassment against the woman; and
private respondent is not covered by RA 9262 because its
proximate cause was not their dating relationship. Instead, he 3. The harassment alarms or causes substantial emotional
claims that the offense committed was only slight physical injuries or psychological distress to her.6
under the Revised Penal Code which falls under the jurisdiction of
the Municipal Trial Court. Notably, while it is required that the offender has or had a sexual
or dating relationship with the offended woman, for RA 9262 to be
The Court is not persuaded. applicable, it is not indispensable that the act of violence be a
consequence of such relationship. Nowhere in the law can such
Sec. 3(a) of RA 9262 reads: limitation be inferred. Hence, applying the rule on statutory
construction that when the law does not distinguish, neither
SEC. 3. Definition of Terms.- As used in this Act, (a) "Violence should the courts, then, clearly, the punishable acts refer to all acts
against women and their children" refers to any act or a series of of violence against women with whom the offender has or had a
acts committed by any person against a woman who is his wife, sexual or dating relationship. As correctly ruled by the RTC, it is
former wife, or against a woman with whom the person has or had immaterial whether the relationship had ceased for as long as
a sexual or dating relationship, or with whom he has a common there is sufficient evidence showing the past or present existence
child, or against her child whether legitimate or illegitimate, of such relationship between the offender and the victim when the
within or without the family abode, which result in or is likely to physical harm was committed. Consequently, the Court cannot
result in physical, sexual, psychological harm or suffering, or depart from the parallelism in Ang and give credence to
economic abuse including threats of such acts, battery, assault, petitioner's assertion that the act of violence should be due to the
coercion, harassment or arbitrary deprivation of liberty. x x x. sexual or dating relationship.
The law is broad in scope but specifies two limiting qualifications Neither can the Court construe the statute in favor of petitioner
for any act or series of acts to be considered as a crime of violence using the rule of lenity7 because there is no ambiguity in RA 9262
against women through physical harm, namely: 1) it is committed that would necessitate any construction. While the degree of
against a woman or her child and the woman is the offender’s wife, physical harm under RA 9262 and Article 266 8 of the Revised
former wife, or with whom he has or had sexual or dating Penal Code are the same, there is sufficient justification for
prescribing a higher penalty for the former. Clearly, the legislative
12
intent is to purposely impose a more severe sanction on the arraigned, hence, the RTC was correct in directing the amendment
offenders whose violent act/s physically harm women with whom of the Information and in denying the motion to quash the same.
they have or had a sexual or dating relationship, and/or their
children with the end in view of promoting the protection of WHEREFORE, the petition is DISMISSED. The Orders dated
women and children. September 13, 2010 and October 5, 2010 of the Regional Trial
Court ( RTC) of Angeles City, Branch 59 in Criminal Case No. 09-
Accordingly, the Information having sufficiently alleged the 5210 are AF.FI RM ED. The Temporary Restraining Order issued
necessary elements of the crime, such as: a dating relationship by the Court is LIFTED and the RTC is directed to continue with
between the petitioner and the private respondent; the act of the proceedings in Criminal Case No. 09-5210.
violence committed by the petitioner; and the resulting physical
harm to private respondent, the offense is covered by RA 9262 SO ORDERED.
which falls under the jurisdiction of the RTC in accordance with
Sec. 7 of the said law which reads: ESTELA M. PERLAS-BERNABE
Associate Justice
SEC. 7. Venue – The Regional Trial Court designated as a Family
Court shall have original and exclusive jurisdiction over cases of WE CONCUR:
violence against women and their children under this law. In the
absence of such court in the place where the offense was ANTONIO T. CARPIO
committed, the case shall be filed in the Regional Trial Court Associate Justice
where the crime or any of its elements was committed at the Chairperson
option of the complainant.
ARTURO D.BRION MARIANO C. DELCASTILLO
9
Finally, the Court finds the Order of the RTC, giving the Associate Justice Associate Justice
prosecutor a period of two (2) days to amend the Information to
reflect the cessation of the dating relationship between the
petitioner and the offended party, to be in accord with Sec. 4 of JOSE PORTUGAL PEREZ
Rule 117 of the Rules of Court, to wit: Associate Justice
SEC. 4. Amendment of complaint or information.- If the motion to ATTESTATION

quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall I attest that the conclusions in the above Decision had been
order that an amendment be made.1âwphi1 reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
Furthermore, Sec. 14 of Rule 110 of the Rules of Court provides
that an information may be amended, in form or in substance, ANTONIO T. CARPIO
without leave of court, at any time before the accused enters his Associate Justice
plea. In the present case, the accused petitioner has not yet been Chairperson, Second Division
13
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the

Division Chairperson's Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P. A. SERENO

Chief Justice
14
Republic of the Philippines service equipment of which Mancor was a distributor, (Rollo, pp.
SUPREME COURT 40-41)
Manila
Having been approached by petitioner on his predicament, who
SECOND DIVISION fully bared that he had no sufficient funds to buy the equipment
needed, the former (Corazon Teng) referred Magno to LS Finance
G.R. No. 96132 June 26, 1992 and Management Corporation (LB Finance for brevity) advising its
Vice-President, Joey Gomez, that Mancor was willing and able to
ORIEL MAGNO, petitioner, supply the pieces of equipment needed if LS Finance could
vs. accommodate petitioner and provide him credit facilities. (Ibid., P.
HONORABLE COURT OF APPEALS and PEOPLE OF THE 41)
PHILIPPINES, respondents.
The arrangement went through on condition that petitioner has to
PARAS, J.: put up a warranty deposit equivalent to thirty per centum (30%)
of the total value of the pieces of equipment to be purchased,
This is an appeal by certiorari under Rule 45 of the Revised Rules amounting to P29,790.00. Since petitioner could not come up with
of Court, from the decision* of the respondent Court of Appeals such amount, he requested Joey Gomez on a personal level to look
which affirmed in toto the decision of the Regional Trial Court of for a third party who could lend him the equivalent amount of the
Quezon City, Branch 104 finding the accused petitioner, guilty of warranty deposit, however, unknown to petitioner, it was Corazon
violations of Batas Pambansa Blg. 22, in Criminal Cases Q-35693 to Teng who advanced the deposit in question, on condition that the
35696 before they were elevated on appeal to the respondent same would be paid as a short term loan at 3% interest (Ibid., P.
appellate Court under CA-G.R. CR No. 04889. 41)
The antecedent facts and circumstances of the four (4) counts of The specific provision in the Leasing Agreement, reads:
the offense charged, have been clearly illustrated, in the Comment
of the Office of the Solicitor General as official counsel for the 1.1. WARRANTY DEPOSIT — Before or upon delivery of
public respondent, thus: each item of Equipment, the Lessee shall deposit with the
Lessor such sum or sums specified in Schedule A to serve as
Petitioner was in the process of putting up a car repair shop security for the faithful performance of its obligations.
sometime in April 1983, but a did not have complete equipment
that could make his venture workable. He also had another This deposit shall be refunded to the Lessee upon the
problem, and that while he was going into this entrepreneurship, satisfactory completion of the entire period of Lease,
he lacked funds with which to purchase the necessary equipment subject to the conditions of clause 1.12 of this Article. (Ibid.,
to make such business operational. Thus, petitioner, representing p. 17)
Ultra Sources International Corporation, approached Corazon
Teng, (private complainant) Vice President of Mancor Industries As part of the arrangement, petitioner and LS Finance entered into
(hereinafter referred to as Mancor) for his needed car repair a leasing agreement whereby LS Finance would lease the garage
equipments and petitioner would pay the corresponding rent with
15
the option to buy the same. After the documentation was and to pay to complainant the respective amounts reflected
completed, the equipment were delivered to petitioner who in in subject checks. (Ibid., pp. 25, 27)
turn issued a postdated check and gave it to Joey Gomez who,
unknown to the petitioner, delivered the same to Corazon Teng. Reviewing the above and the affirmation of the above-stated
When the check matured, Petitioner requested through Joey decision of the court a quo, this Court is intrigued about the
Gomez not to deposit the check as he (Magno) was no longer outcome of the checks subject of the cases which were intended by
banking with Pacific Bank. the parties, the petitioner on the one hand and the private
complainant on the other, to cover the "warranty deposit"
To replace the first check issued, petitioner issued another set of equivalent to the 30% requirement of the financing company.
six (6) postdated checks. Two (2) checks dated July 29, 1983 were Corazon Teng is one of the officers of Mancor, the supplier of the
deposited and cleared while the four (4) others, which were the equipment subject of the Leasing Agreement subject of the high
subject of the four counts of the aforestated charges subject of the financing scheme undertaken by the petitioner as lessee of the
petition, were held momentarily by Corazon Teng, on the request repair service equipment, which was arranged at the instance of
of Magno as they were not covered with sufficient funds. These Mrs. Teng from the very beginning of the transaction.
checks were a) Piso Bank Check Nos. 006858, dated August 15,
1983, 006859 dated August 28, 1983 and 006860 dated By the nature of the "warranty deposit" amounting to P29,790.00
September 15, 1983, all in the amount of P5,038.43 and No. corresponding to 30% of the "purchase/lease" value of the
006861 dated September 28, 1983, in the amount of P10,076.87. equipments subject of the transaction, it is obvious that the "cash
(Ibid., pp. 42 & 43). out" made by Mrs. Teng was not used by petitioner who was just
paying rentals for the equipment. It would have been different if
Subsequently, petitioner could not pay LS Finance the monthly petitioner opted to purchase the pieces of equipment on or about
rentals, thus it pulled out the garage equipments. It was then on the termination of the lease-purchase agreement in which case he
this occasion that petitioner became aware that Corazon Teng was had to pay the additional amount of the warranty deposit which
the one who advanced the warranty deposit. Petitioner with his should have formed part of the purchase price. As the transaction
wife went to see Corazon Teng and promised to pay the latter but did not ripen into a purchase, but remained a lease with rentals
the payment never came and when the four (4) checks were being paid for the loaned equipment, which were pulled out by the
deposited they were returned for the reason "account closed." Lessor (Mancor) when the petitioner failed to continue paying
(Ibid., p. 43) possibly due to economic constraints or business failure, then it is
lawful and just that the warranty deposit should not be charged
After joint trial before the Regional Trial Court of Quezon City, against the petitioner.
Branch 104, the accused-petitioner was convicted for violations of
BP Blg. 22 on the four (4) cases, as follows: To charge the petitioner for the refund of a "warranty deposit"
which he did not withdraw as it was not his own account, it having
. . . finding the accused-appellant guilty beyond reasonable remained with LS Finance, is to even make him pay an unjust
doubt of the offense of violations of B.P. Blg. 22 and "debt", to say the least, since petitioner did not receive the amount
sentencing the accused to imprisonment for one year in in question. All the while, said amount was in the safekeeping of
each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 the financing company, which is managed, supervised and
operated by the corporation officials and employees of LS Finance.
16
Petitioner did not even know that the checks he issued were full to Mrs. Teng by petitioner when he did not cash out the
turned over by Joey Gomez to Mrs. Teng, whose operation was "warranty deposit" for his official or personal use, is to stretch the
kept from his knowledge on her instruction. This fact alone evoke nicety of the alleged law (B.P. No, 22) violated.
suspicion that the transaction is irregular and immoral per se,
hence, she specifically requested Gomez not to divulge the source For all intents and purposes, the law was devised to safeguard the
of the "warranty deposit". interest of the banking system and the legitimate public checking
account user. It did not intend to shelter or favor nor encourage
It is intriguing to realize that Mrs. Teng did not want the petitioner users of the system to enrich themselves through manipulations
to know that it was she who "accommodated" petitioner's request and circumvention of the noble purpose and objective of the law.
for Joey Gomez, to source out the needed funds for the "warranty Least should it be used also as a means of jeopardizing honest-to-
deposit". Thus it unfolds the kind of transaction that is shrouded goodness transactions with some color of "get-rich" scheme to the
with mystery, gimmickry and doubtful legality. It is in simple prejudice of well-meaning businessmen who are the pillars of
language, a scheme whereby Mrs. Teng as the supplier of the society.
equipment in the name of her corporation, Mancor, would be able
to "sell or lease" its goods as in this case, and at the same time, Under the utilitarian theory, the "protective theory" in criminal
privately financing those who desperately need petty law, "affirms that the primary function of punishment is the
accommodations as this one. This modus operandi has in so many protective (sic) of society against actual and potential
instances victimized unsuspecting businessmen, who likewise wrongdoers." It is not clear whether petitioner could be considered
need protection from the law, by availing of the deceptively called as having actually committed the wrong sought to be punished in
"warranty deposit" not realizing that they also fall prey to leasing the offense charged, but on the other hand, it can be safely said
equipment under the guise of a lease-purchase agreement when it that the actuations of Mrs. Carolina Teng amount to that of
is a scheme designed to skim off business clients. potential wrongdoers whose operations should also be clipped at
some point in time in order that the unwary public will not be
This maneuvering has serious implications especially with respect failing prey to such a vicious transaction (Aquino, The Revised
to the threat of the penal sanction of the law in issue, as in this Penal Code, 1987 Edition, Vol. I, P. 11)
case. And, with a willing court system to apply the full harshness of
the special law in question, using the "mala prohibitia" doctrine, Corollary to the above view, is the application of the theory that
the noble objective of the law is tainted with materialism and "criminal law is founded upon that moral disapprobation . . . of
opportunism in the highest, degree. actions which are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which depend the existence
This angle is bolstered by the fact that since the petitioner or and progress of human society. This disappropriation is inevitable
lessee referred to above in the lease agreement knew that the to the extent that morality is generally founded and built upon a
amount of P29,790.00 subject of the cases, were mere certain concurrence in the moral opinions of all. . . . That which we
accommodation-arrangements with somebody thru Joey Gomez, call punishment is only an external means of emphasizing moral
petitioner did not even attempt to secure the refund of said disapprobation the method of punishment is in reality the amount
amount from LS Finance, notwithstanding the agreement of punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA
provision to the contrary. To argue that after the termination of 54 O.G. 6904, Note also Justice Pablo's view in People v. Piosca and
the lease agreement, the warranty deposit should be refundable in Peremne, 86 Phil. 31).
17
Thus, it behooves upon a court of law that in applying the Moreover, even granting, arguendo, that the
punishment imposed upon the accused, the objective of extinguishment, after the issuance of the checks, of the
retribution of a wronged society, should be directed against the obligation in consideration of which the checks were
"actual and potential wrongdoers." In the instant case, there is no issued, would have resulted in placing the case at bar
doubt that petitioner's four (4) checks were used to collateralize beyond the purview of the prohibition in Section 1 of BP
an accommodation, and not to cover the receipt of an actual Blg. 22, there is no satisfactory proof that there was such an
"account or credit for value" as this was absent, and therefore extinguishment in the present case. Appellee aptly points
petitioner should not be punished for mere issuance of the checks out that appellant had not adduced any direct evidence to
in question. Following the aforecited theory, in petitioner's stead prove that the amount advanced by the complainant to cover
the "potential wrongdoer", whose operation could be a menace to the warranty deposit must already have been returned to
society, should not be glorified by convicting the petitioner. her. (Rollo, p. 30)
While in case of doubt, the case should have been resolved in favor It is indubitable that the respondent Court of Appeals even
of the accused, however, by the open admission of the appellate disregarded the cardinal rule that the accused is presumed
court below, oven when the ultimate beneficiary of the "warranty innocent until proven guilty beyond reasonable doubt. On the
deposit" is of doubtful certainty, the accused was convicted, as contrary, the same court even expected the petitioner-appellant to
shown below: adduce evidence to show that he was not guilty of the crime
charged. But how can be produce documents showing that the
Nor do We see any merit in appellant's claim that the warranty deposit has already been taken back by Mrs. Teng when
obligation of the accused to complainant had been she is an officer of Mancor which has interest in the transaction,
extinguished by the termination of the leasing agreement besides being personally interested in the profit of her side-line.
— by the terms of which the warranty deposit advanced by Thus, even if she may have gotten back the value of the
complainant was refundable to the accused as lessee — and accommodation, she would still pursue collecting from the
that as the lessor L.S. Finance neither made any liquidation petitioner since she had in her possession the checks that
of said amount nor returned the same to the accused, it "bounced".
may he assumed that the amount was already returned to
the complainant. For these allegations, even if true, do not That the court a quo merely relied on the law, without looking into
change the fact, admitted by appellant and established by the real nature of the warranty deposit is evident from the
the evidence, that the four checks were originally issued on following pronouncement:
account or for value. And as We have already observed, in
order that there may be a conviction under the from And the trail court concluded that there is no question that
paragraph of Section 2 of B.P. Blg 22 — with respect to the the accused violated BP Blg. 22, which is a special statutory
element of said offense that the check should have been law, violations of which are mala prohibita. The court relied
made and issued on account or for value — it is sufficient, on the rule that in cases of mala prohibita, the only inquiry
all the other elements of the offense being present, that the is whether or not the law had been violated, proof of
check must have been drawn and issued in payment of an criminal intent not being necessary for the conviction of the
obligation. accused, the acts being prohibited for reasons of public
policy and the defenses of good faith and absence of
18
criminal intent being unavailing in prosecutions for said The act of placing money in the custody of a bank or
offenses." (Ibid., p. 26) banker, for safety or convenience, to be withdrawn at the
will of the depositor or under rules and regulations agreed
The crux of the matter rests upon the reason for the drawing of the on. Also, the money so deposited, or the credit which the
postdated checks by the petitioner, i.e., whether they were drawn depositor receives for it. Deposit, according to its
or issued "to apply on account or for value", as required under commonly accepted and generally understood among
Section 1 of B.P. Blg, 22. When viewed against the following bankers and by the public, includes not only deposits
definitions of the catch-terms "warranty" and "deposit", for which payable on demand and for which certificates, whether
the postdated checks were issued or drawn, all the more, the interest-bearing or not, may be issued, payable on demand,
alleged crime could not have been committed by petitioner: or on certain notice or at a fixed future time. (Ibid., pp. 394-
395)
a) Warranty — A promise that a proposition of fact is true.
A promise that certain facts are truly as they are Furthermore, the element of "knowing at the time of issue that he
represented to be and that they will remain so: . . . (Black's does not have sufficient funds in or credit with the drawee bank
Law Dictionary, Fifth Edition, (1979) p. 1423) for the payment of such check in full upon its presentment, which
check is subsequently dishonored by the drawee bank for
A cross-reference to the following term shows: insufficiency of funds or credit or would have been dishonored for
the same reason . . . is inversely applied in this case. From the very
Fitness for Particular Purpose: — beginning, petitioner never hid the fact that he did not have the
funds with which to put up the warranty deposit and as a matter of
Where the seller at the time of contracting has reason to fact, he openly intimated this to the vital conduit of the
know any particular purpose for which the goods are transaction, Joey Gomez, to whom petitioner was introduced by
required and that the buyer is relying on the seller's skill or Mrs. Teng. It would have been different if this predicament was
judgment to select or furnish suitable goods, there is, unless not communicated to all the parties he dealt with regarding the
excluded or modified, an implied warranty that the goods lease agreement the financing of which was covered by L.S.
shall be fit for such purpose, (Ibid., p. 573) Finance Management.
b) Deposit: — Money lodged with a person as an earnest or WHEREFORE, the appealed decision is REVERSED and the
security for the performance of some contract, to be accused-petitioner is hereby ACQUITTED of the crime charged.
forfeited if the depositor fails in his undertaking. It may be
deemed to be part payment and to that extent may SO ORDERED.
constitute the purchaser the actual owner of the estate.
Padilla and Regalado, JJ., concur.
To commit to custody, or to lay down; to place; to put. To
lodge for safekeeping or as a pledge to intrust to the care Narvasa, C.J.,, concurs in the result.
of another.
Nocon, J., is on leave.
19
Republic of the Philippines From an assiduous review of the records, we find that the relevant
SUPREME COURT factual and procedural antecedents for these petitions can be
Manila summarized as follows:
FIRST DIVISION Petitioner lent is a British national and the Chief Financial Officer
of Tradition Asia Pacific Pte. Ltd. (Tradition Asia) in
January 11, 2017 Singapore.4 Petitioner Schulze is a Filipino/German who does
Application Support for Tradition Financial Services Ltd. in
G.R. No. 189158 London (Tradition London). 5 Tradition Asia and Tradition London
are subsidiaries of Compagnie Financiere Tradition and are part of
JAMES IENT and MAHARLIKA SCHULZE, Petitioners, the "Tradition Group." The Tradition Group is allegedly the third
vs. largest group of Inter-dealer Brokers (IDB) in the world while the
TULLETT PREBON (PHILIPPINES), INC., Respondent. corporate organization, of which respondent Tullett is a part, is
supposedly the second largest. In other words, the Tradition
x-----------------------x Group and Tullett are competitors in the inter-dealer broking
business. IDBs purportedly "utilize the secondary fixed income
JAMES IENT and MAHARLIKA SCHULZE, Petitioners, and foreign exchange markets to execute their banks and their
vs. bank customers' orders, trade for a profit and manage their
TULLETT PREBON (PHILIPPINES), INC., Respondent. exposure to risk, including credit, interest rate and exchange rate
risks." In the Philippines, the clientele for IDBs is mainly
DECISION comprised of banks and financial institutions.6
LEONARDO-DE CASTRO, J.: Tullett was the first to establish a business presence in the
Philippines and had been engaged in the inter-dealer broking
In these consolidated Petitions for Review under Rule 45 of the business or voice brokerage here since 1995. 7 Meanwhile, on the
Rules of Court, petitioners James A. Ient (Ient) and Maharlika C. part of the Tradition Group, the needs of its Philippine clients were
Schulze (Schulze) assail the Court of Appeals Decision 1 dated previously being serviced by Tradition Asia in Singapore. The
August 12, 2009 in CA-G.R. SP No. 109094, which affirmed the other IDBs in the Philippines are Amstel and Icap.8
Resolutions dated April 23, 2009 2 and May 15, 20093 of the
Secretary of Justice in LS. No. 08-J-8651. The Secretary of Justice, Sometime in August 2008, in line with Tradition Group's motive of
through the Resolutions dated April 23, 2009 and May 15, 2009, expansion and diversification in Asia, petitioners lent and Schulze
essentially ruled that there was probable cause to hold petitioners, were tasked with the establishment of a Philippine subsidiary of
in conspiracy with certain former directors and officers of Tradition Asia to be known as Tradition Financial Services
respondent Tullet Prebon (Philippines), Inc. (Tullett), criminally Philippines, Inc. (Tradition Philippines).9 Tradition Philippines
liable for violation of Sections 31 and 34 in relation to Section 144 was registered with the Securities and Exchange Commission
of the Corporation Code. (SEC) on September 19, 200810 with petitioners lent and Schulze,
among others, named as incorporators and directors in its Articles
of Incorporation. 11
20
On October 15, 2008, Tullett, through one of its directors, Gordon which made them criminally liable under Section 144. As for
Buchan, filed a Complaint-Affidavit 12 with the City Prosecution petitioners lent and Schulze, Tullett asserted that they conspired
Office of Makati City against the officers/employees of the with Villalon and Chuidian in the latter's acts of disloyalty against
Tradition Group for violation of the Corporation Code. Impleaded the company. 13
as respondents in the Complaint-Affidavit were petitioners lent
and Schulze, Jaime Villalon (Villalon), who was formerly President Villalon and Chuidian filed their respective Counter-Affivadits. 14
and Managing Director of Tullett, Mercedes Chuidian (Chuidian),
who was formerly a member of Tullett's Board of Directors, and Villalon alleged that frustration with management changes in
other John and Jane Does. Villalon and Chuidian were charged with Tullett Prebon motivated his personal decision to move from
using their former positions in Tullett to sabotage said company Tullett and accept the invitation of a Leonard Harvey (also
by orchestrating the mass resignation of its entire brokering staff formerly an executive of Tullett) to enlist with the Tradition
in order for them to join Tradition Philippines. With respect to Group. As a courtesy to the brokers and staff, he informed them of
Villalon, Tullett claimed that the former held several meetings his move contemporaneously with the tender of his resignation
between August 22 to 25, 2008 with members ofTullett's Spot letter and claimed that his meetings with the brokers was not
Desk and brokering staff in order to convince them to leave the done in bad faith as it was but natural, in light of their long
company. Villalon likewise supposedly intentionally failed to working relationship, that he share with them his plans. The
renew the contracts of some of the brokers. On August 25, 2008, a affidavit of Engelbert Wee should allegedly be viewed with great
meeting was also allegedly held in Howzat Bar in Makati City caution since Wee was one of those who accepted employment
where petitioners and a lawyer of Tradition Philippines were with Tradition Philippines but changed his mind and was
present. At said meeting, the brokers of complainant Tullett were subsequently appointed Managing Director (Villalon's former
purportedly induced, en masse, to sign employment contracts with position) as a prize for his return. Villalon further argued that his
Tradition Philippines and were allegedly instructed by Tradition resignation from Tullett was done in the exercise of his
Philippines' lawyer as to how they should file their resignation fundamental rights to the pursuit of life and the exercise of his
letters. profession; he can freely choose to avail of a better life by seeking
greener pastures; and his actions did not fall under any of the
Complainant also claimed that Villalon asked the brokers present prohibited acts under Sections 31 and 34 of the Corporation Code.
at the meeting to call up Tullett's clients to inform them that they It is likewise his contention that Section 144 of the Corporation
had already resigned from the company and were moving to Code applies only to violations of the Corporation Code which do
Tradition Philippines. On August 26, 2008, Villalon allegedly not provide for a penalty while Sections 31 and 34 already provide
informed Mr. Barry Dennahy, Chief Operating Officer of Tullett for the applicable penalties for violations of said provisions -
Prebon in the Asia-Pacific, through electronic mail that all of damages, accounting and restitution. Citing the Department of
Tullett's brokers had resigned. Subsequently, on September 1, Justice (DOJ) Resolution dated July 30, 2008 in UCPB v.
2008, in another meeting with lent and Tradition Philippines' Antiporda, Villalon claimed that the DOJ had previously
counsel, indemnity contracts in favor of the resigning employees proclaimed that Section 31 is not a penal provision of law but only
were purportedly distributed by Tradition Philippines. According the basis of a cause of action for civil liability. Thus, he concluded
to Tullett, respondents Villalon and Chuidian (who were still its that there was no probable cause that he violated the Corporation
directors or officers at the times material to the Complaint- Code nor was the charge of conspiracy properly substantiated. 15
Affidavit) violated Sections 31 and 34 of the Corporation Code
21
Chuidian claimed that she left Tullett simply to seek greener pressure on her and Ient's part and were well within said
pastures. She also insisted the complaint did not allege any act on employees' right to "free choice of employment."20
her part that is illegal or shows her participation in any
conspiracy. She merely exercised her right to exercise her chosen For his part, petitioner lent alleged in his Counter-Affidavit that
profession and pursue a better life. Like Villalon, she stressed that the charges against him were merely filed to harass Tradition
her resignation from Tullett and subsequent transfer to Tradition Philippines and prevent it from penetrating the Philippine market.
Philippines did not fall under any of the prohibited acts under He further asserted that due to the highly specialized nature of the
Sections 31 and 34. Section 144 of the Corporation Code industry, there has always been a regular flow of brokers between
purportedly only applies to provisions of said Code that do not the major players. He claimed that Tradition came to the
provide for any penalty while Sections 31 and 34 already provide Philippines in good faith and with a sincere desire to foster healthy
for the penalties for their violation - damages, accounting and competition with the other brokers. He averred that he never
restitution. In her view, that Section 34 provided for the forced anyone to join Tradition Philippines and the Tullett
ratification of the acts of the erring corporate director, trustee or employees' signing on with Tradition Philippines was their
office evinced legislative intent to exclude violation of Section 34 voluntary act since they were discontented with the working
from criminal prosecution. She argued that Section 144 as a penal environment in Tullett. Adopting a similar line of reasoning as
provision should be strictly construed against the State and Schulze, lent believed that the Revised Penal Code could not be
liberally in favor of the accused and Tullett has failed to made suppletorily applicable to the Corporation Code so as to
substantiate its charge of bad faith on her part.16 charge him as a conspirator. According to lent, he merely acted
within his rights when he offered job opportunities to any
In her Counter-Affidavit, 17 petitioner Schulze denied the charges interested person as it was within the employees' rights to change
leveled against her. She pointed out that the Corporation Code is their employment, especially since Article 23 of the Universal
not a "special law" within the contemplation of Article 10 18 of the Declaration of Human Rights (of which the Philippines is a
Revised Penal Code on the supplementary application of the signatory) provides that "everyone has the right to work, to free
Revised Penal Code to special laws since said provision choice of employment, to just and favorable conditions of work
purportedly applies only to "special penal laws." She further and to protection against unemployment."21 He also denounced
argued that "[s]ince the Corporation Code does not expressly the Complaint-Affidavit and the affidavits of Tullett employees
provide that the provisions of the Revised Penal Code shall be attached thereto as self-serving or as an exaggeration/twisting of
made to apply suppletorily, nor does it adopt the nomenclature of the true events.22
penalties of the Revised Penal Code, the provisions of the latter
cannot be made to apply suppletorily to the former as provided for In a Consolidated Reply-Affidavit23 notarized on January 22, 2009,
in the first sentence of Article 10 of the Revised Penal Tullett argued that Villalon, Chuidian, Schulze, and lent have
Code."19 Thus, she concluded that a charge of conspiracy which has mostly admitted the acts attributed to them in the Complaint-
for its basis Article 8 of the Revised Penal Code cannot be made Affidavit and only attempted to characterize said acts as "normal,"
applicable to the provisions of the Corporation Code. "innocent" or "customary." It was allegedly evident from the
Counter-Affidavits that the resignation of Tullett's employees was
Schulze also claimed that the resignations of Tullett's employees an orchestrated plan and not simply motivated by their seeking
were done out of their own free will without force, intimidation or "greener pastures." Purported employee movements in the
industry between the major companies are irrevelant since such
22
movements are subject to contractual obligations. Tullett likewise up a Philippine office. Echoing the arguments of Villalon and
denied that its working environment was stringent and "weird." Chuidian, lent claimed that (a) there could be no violation of
Even assuming that Villalon and Chuidian were dissatisfied with Sections 31 and 34 of the Corporation as these sections refer to
their employment in Tullett, this would supposedly not justify nor corporate acts or corporate opportunity; (b) Section 144 of the
exempt them from violating their duties as Tullett's same Code cannot be applied to Sections 31 and 34 which already
officers/directors. There was purportedly no violation of their contains the penalties or remedies for their violation; and (c)
constitutional rights to liberty or to exercise their profession as conspiracy under the Revised Penal Code cannot be applied to the
such rights are not unbridled and subject to the laws of the State. Sections 31 and 34 of the Corporation Code.
In the case of Villalon and Chuidian, they had to comply with their
duties found in Sections 31 and 34 of the Corporation Code. Tullett In a Resolution28 dated February 17, 2009, State Prosecutor
asserts that Section 144 applies to the case at bar since the DOJ Cresencio F. Delos Trinos, Jr. (Prosecutor Delos Trinos), Acting
Resolution in UCPB is not binding as it applies only to the parties City Prosecutor of Makati City, dismissed the criminal complaints.
therein and it likewise involved facts different from the present He reasoned that:
case. Relying on Home Insurance Company v. Eastern Shipping
Lines, 24 Tullett argued that Section 144 applies to all other It is our considered view that the acts ascribed [to] respondents
violations of the Corporation Code without exception. Article 8 of Villalon and Chuidian did not constitute any of the prohibited acts
the Revised Penal Code on conspiracy was allegedly applicable to of directors or trustees enunciated under Section 31. Their cited
the Corporation Code as a special law with a penal provision. 25 actuations certainly did not involve voting for or assenting to
patently unlawful acts of [Tullett] nor could the same be construed
In a Supplemental Complaint-Affidavit 26 likewise notarized on as gross negligence or bad faith in directing the affairs of [Tullett].
January 22, 2009, Tullett included Leonard James Harvey (Harvey) There is also no showing that they acquired any personal or
in the case and alleged that it learned of Harvey's complicity pecuniary interest in conflict with their duty as directors of
through the Counter-Affidavit of Villalon. Tullett claimed that [Tullett]. Neither was there a showing that they attempted to
Harvey, who was Chairman of its Board of Directors at the time acquire or acquired, in violation of their duty as directors, any
material to the Complaint, also conspired to instigate the interest adverse to [Tullett] in respect [to] any matter which has
resignations of its employees and was an indispensable part of the been reposed in them in confidence.
sabotage committed against it.
xxxx
27
In his Rejoiner-Affidavit, lent vehemently denied that there was a
pre-arranged plan to sabotage Tullett. According to lent, Gordon The issue that respondent Villalon informed the brokers of his
Buchan of Tullett thought too highly of his employer to believe plan to resign from [Tullett] and to subsequently transfer to
that the Tradition Group's purpose in setting up Tradition Tradition is not in dispute. However, we are unable to agree that
Philippines was specifically to sabotage Tullett. He stressed that the brokers were induced or coerced into resigning from [Tullett]
Tradition Philippines was set up for legitimate business purposes and transferring to Tradition themselves.x x x As the record
and Tullett employees who signed with Tradition did so out of shows, Mr. Englebert Wee and the six (6) members of the broking
their own free will and without any force, intimidation, pressure staff who stand as [Tullett]'s witnesses, also initially resigned from
or inducement on his and Schulze' s part. All he allegedly did was [Tullett] and transferred to Tradition but backed out from their
confirm the rumors that the Tradition Group was planning to set
23
contract of employment with Tradition and opted to remain with applicable to the former. 30 Lastly, on the applicability of Section
[Tullett]. 144 to Sections 31 and 34, Prosecutor Delos Trinos relied on the
reasoning in the DOJ Resolution dated July 30, 2008 in UCPB v.
Even assuming ex gratia argumenti that the brokers were induced Antiporda issued by then Secretary of Justice Raul M. Gonzalez, to
by the respondents or anyone of them to leave their employment wit:
with [Tullett], such inducement may only give rise to civil liability
for damages against the respondents but no criminal liability We maintain and reiterate the ratiocination of the Secretary of
would attach on them. x x x. Justice in United Coconut Planters Bank vs. Tirso Antiporda, et al.,
I.S. No. 2007-633 promulgated on July 30, 2008, thus - "It must be
On the alleged inducements of clients of [Tullett] to transfer to noted that Section 144 covers only those provisions 'not otherwise
Tradition, there is no showing that clients of [Tullett] actually specifically penalized therein. ' In plain language, this means that
transferred to Tradition. Also, the allegation that respondents the penalties under Section 144 apply only when the other
orchestrated the mass resignation of employees of [Tullett] to provisions of the Corporation Code do not yet provide penalties for
destroy or shut down its business and to eliminate it from the non-compliance therewith. "
market in order that Tradition could take its place is baseless and
speculative. Significantly, it is noted that despite the resignations A reading of Sections 31 and 34 shows that penalties for violations
of respondents Villalon and Chuidian and the majority of the thereof are already provided therein. Under Section 31, directors
broking staff and their subsequent transfer to Tradition, the or trustees are made liable for damages that may result from their
business of [Tullet] was not destroyed or shut down. [Tullett] was fraudulent or illegal acts. Also, directors, trustees or officers who
neither eliminated from the market nor its place in the market attempt to acquire or acquire any interest adverse to the
taken by Tradition. x x x corporation will have to account for the profits which otherwise
would have accrued to the corporation. Section 34, on the other
In the same vein, the "corporate opportunity doctrine" enunciated hand, penalizes directors who would be guilty of disloyalty to the
under Section 34 does not apply herein and cannot be rightfully corporation by accounting to the corporation all profits that they
raised against respondents Villalon and Chuidian. Under Section may realize by refunding the same.31
34, a director of a corporation is prohibited from competing with
the business in which his corporation is engaged in as otherwise Consequently, Tullett filed a petition for review with the Secretary
he would be guilty of disloyalty where profits that he may realize of Justice to assail the foregoing resolution of the Acting City
will have to go to the corporate funds except if the disloyal act is Prosecutor of Makati City. In a Resolution 32 dated April 23, 2009,
ratified. Suffice it to say that their cited acts did not involve any then Secretary of Justice Raul M. Gonzalez reversed and set aside
competition with the business of [Tullett].29 Prosecutor Delos Trinos's resolution and directed the latter to file
the information for violation of Sections 31 and 34 in relation to
On the issue of conspiracy, Prosecutor Delos Trinos found that Section 144 of the Corporation Code against Villalon, Chuidian,
since Villalon and Chuidian did not commit any acts in violation of Harvey, Schulze, and lent before the proper court. As can be
Sections 31 and 34 of the Corporation Code, the charge of gleaned from the April 23, 2009 Resolution, the Secretary of
conspiracy against Schulze and lent had no basis. As for Harvey, Justice ruled that:
said Resolution noted that he was similarly situated as Villalon and
Chuidian; thus, the considerations in the latter's favor were
24
It is evident from the case at bar that there is probable cause to which rightly belonging to it will be transferred to a competitor
indict respondents Villalon, Chuidian and Harvey for violating company to be headed by respondents.
Section 31 of the Corporation Code. Indeed, there is prima
facie evidence to show that the said respondents acted in bad faith The provision of Section 144 of the Corporation Code is also
in directing the affairs of complainant. Undeniably, respondents applicable in the case at bar as the penal provision provided
Villalon, Chuidian and Harvey occupied positions of high therein is made applicable to all violations of the Corporation
responsibility and great trust as they were members of the board Code, not otherwise specifically penalized. Moreover, the factual
of directors and corporate officers of complainant. x x x As such, milieu of the case entitled "Antiporda, et al., IS No. 2007-633" is
they are required to administer the corporate affairs of inapplicable as the facts of the above-entitled case is different.
complainant for the welfare and benefit of the stockholders and to
exercise the best care, skill and judgment in the management of xxxx
the corporate business and act solely for the interest of the
corporation. As for respondent Harvey's probable indictment, aside from not
submitting his counter-affidavit, the counter-affidavit of
xxxx respondent Villalon showed that he is also liable as such since the
idea to transfer the employment of complainant's brokers was
Respondents Villalon and Chuidian acted with dishonesty and in broached by him.
fraud. They went to the extent of having their several meetings
away from complainant's office so as to secretly entice and induce Anent respondents lent and Schulze, record revealed that they
all its brokers to transfer to Tradition. Respondents Villalon and conspired with respondents Villalon and Chuidian when they
Chuidian did not entice merely one or two employees of actively participated in the acts complained of. They presented the
complainant but admittedly, the entire broking staff of the latter. employment contracts and indemnity agreements with the
This act would lead to the sure collapse of complainant. x x x. brokers of complainant in a series of meetings held with
respondents Villalon and Chuidian. Respondent lent signed the
Further, respondents Villalon and Chuidian acquired personal and contracts as CFO of Tradition Asia and even confirmed the transfer
pecuniary interest in conflict with their duties as directors of of respondent Villalon to Tradition. Respondent Schulze admitted
complainant. Respondents Villalon and Chuidian committed the that the purpose of her sojourn in the Philippines was to assist in
acts complained of in order to transfer to Tradition, to have a the formation of Tradition. Thus, it is clear that their role in the
higher salary and position and bring the clients and business of acts complained of were instrumental for respondents Villalon and
complainant with them. The fact that Tradition is not yet Chuidian to violate their duties and responsibilities as directors
incorporated at that time is of no consequence. and officers of complainant.33
Moreover, respondents Villalon and Chuidian violated Section 34 Ient and Schulze moved for reconsideration of the foregoing
of the Corporation Code when they acquired business opportunity Resolution by the Secretary of Justice. Meanwhile, on May 14,
adverse to that of complainant. When respondents Villalon and 2009, two Informations, one for violation of Section 31 and
Chuidian told the brokers of complainant to convince their clients another for violation of Section 34, were filed by Prosecutor Delos
to transfer their business to Tradition, the profits of complainant Trinos with the Metropolitan Trial Court of Makati City. In a
Resolution dated May 15, 2009, the Secretary of Justice denied the
25
motion for reconsideration filed by petitioners. Unsatisfied with clear. Thus, where a director converts for his own use funds or
this tum of events, petitioners lent and Schulze brought the matter property belonging to the corporation, or accepts material benefits
to the Court of Appeals via a petition for certiorari under Rule 65 for exercising his powers in favor of someone seeking to do
which was docketed as CA-G.R. SP No. 109094. business with the corporation, no court will allow him to keep the
profit he derives from his wrongdoing. In many other cases,
In a Decision dated August 12, 2009, the Court of Appeals affirmed however, the line of demarcation between the fiduciary
the Secretary of Justice's Resolutions dated April 23, 2009 and relationship and a director's personal right is not easy to
May 15, 2009, after holding that: define. The Code has attempted at least to lay down general
rules of conduct and although these serve as guidelines for
Respondent Secretary correctly stressed that Sections 31 and 34 directors to follow, the determination as to whether in a given
must be read in the light of the nature of the position of a director case the duty of loyalty has been violated has ultimately to be
and officer of the corporation as highly imbued with trust and decided by the court on the case's own merits." x x x.
confidence. Petitioners' rigid interpretation of clear-cut instances
of liability serves only to undermine the values of loyalty, honesty Prescinding from the above, We agree with the Secretary of Justice
and fairness in managing the affairs of the corporation, which the that the acts complained of in this case establish a prima facie case
law vested on their position. Besides, this Court can hardly deduce for violation of Sec. 31 such that the accused directors and officers
abuse of discretion on the part of respondent Secretary in of private respondent corporation are probably guilty of breach
considering a conflict of interest scenario from petitioners' act of of bad faith in directing the affairs of the corporation. The breach of
advancing the interest of an emerging competitor in the field fiduciary duty as such director and corporate office (sic) are
rather than fiercely protecting the business of their own company. evident from their participation in recruiting the brokers
As aptly pointed out by the private respondent, the issue is not the employed in the corporation, inducing them to accept employment
right of the employee brokers to seek greener pastures or better contracts with the newly formed firm engaged in competing
employment opportunities but the breach of fiduciary duty owed business, and securing these new hires against possible breach of
by its directors and officers. contract complaint by the corporation through indemnity
contracts provided by Tradition Philippines. Clearly, no grave
In the commentary on the subject of duties of directors and abuse of discretion was committed by the respondent Secretary in
controlling stockholders under the Corporation Code, Campos reversing the city prosecutor's dismissal of the criminal complaint
explained: and ordering the filing of the corresponding information against
the accused, including herein petitioners.
"Fiduciary Duties; Conflict of Interest
As to petitioners' contention that conspiracy had not been
"A director, holding as he does a position of trust, is a fiduciary of established by the evidence, suffice it to state that such stance is
the corporation. As such, in case of conflict of his interest with belied by their own admission of the very acts complained of in the
those of the corporation, he cannot sacrifice the latter without Complaint-Affidavit, the defense put up by them consists merely in
incurring liability for his disloyal act. The fiduciary duty has their common argument that no crime was committed because
many ramifications, and the possible conflict-of-interest private respondent's brokers had the right to resign and transfer
situations are almost limitless, each possibility posing employment if they so decide.
different problems. There will be cases where a breach of trust is
26
It bears to reiterate that probable cause is such set of facts and rather than, criminal liability and hence does not fall under those
circumstances which would lead a reasonably discreet and provisions of the Code which are not "specifically penalized" with
prudent man to believe that the offense charged in the Information fine or imprisonment.34
or any offense included therein has been committed by the person
sought to be arrested. In determining probable cause, the average In light of the adverse ruling of the Court of Appeals, petitioners
man weighs the facts and circumstances without resorting to the lent and Schulze filed separate petitions for review with this
calibrations of the rules of evidence of which he has no technical Court.1âwphi1 After requiring further pleadings from the parties,
knowledge. He relies on common sense. Thus, a finding of the Court directed the parties to submit their memoranda to
probable cause does not require an inquiry into whether there is consolidate their positions on the issues.
sufficient evidence to procure a conviction. It is enough that it is
believed that the act or omission complained of constitutes the At the outset, it should be noted that respondent Tullett
offense charged. Precisely, there is a trial for the reception of interposed several procedural objections which we shall dispose
evidence of the prosecution in support of the charge. of first.
Finally, the Court finds no merit in the argument of petitioners that Anent respondent's contentions that the present petitions
Sec. 144 is not applicable since Sec. 31 already provides for (assailing the issuances of the Secretary of Justice on the question
liability for damages against the guilty director or corporate of probable cause) had become moot and academic with the filing
officer. of the Informations in the trial court and that under our ruling
in Advincula v. Court of Appeals 35the filing of a petition
"SEC. 144. Violations of the Code. - Violations of any of the for certiorari with the appellate court was the improper remedy as
provisions of this Code or its amendments not otherwise findings of the Secretary of Justice on probable cause must be
specifically penalized therein shall be punished by a fine of not respected, we hold that these cited rules are not inflexible.
less than one thousand (₱1,000.00) pesos but not more than ten
thousand (₱10,000.00) pesos or by imprisonment for not less than In Yambot v. Tuquero,36we observed that under exceptional
thirty (30) days but not more than five (5) years, or both, in the circumstances, a petition for certiorari assailing the resolution of
discretion of the court. If the violation is committed by a the Secretary of Justice (involving an appeal of the prosecutor's
corporation, the same may, after notice and hearing, be dissolved ruling on probable cause) may be allowed, notwithstanding the
in appropriate proceedings before the Securities and Exchange filing of an information with the trial court. We reiterated the
Commission; Provided, That such dissolution shall not preclude doctrine in Ching v. Secretary of Justice37that the acts of a quasi-
the institution of appropriate action against the director, trustee judicial officer may be assailed by the aggrieved party through a
or officer of the corporation responsible for the said petition for certiorari and enjoined (a) when necessary to afford
violation; Provided, further, That nothing in this section shall be adequate protection to the constitutional rights of the accused; (b)
construed to repeal the other causes for dissolution of a when necessary for the orderly administration of justice; (c) when
corporation provided in this Code." x x x. the acts of the officer are without or in excess of authority; (d)
where the charges are manifestly false and motivated by the lust
"Damages" as the term is used in Sec. 31 cannot be deemed as for vengeance; and (e) when there is clearly no prima facie case
punishment or penalty as this appears in the above-cited criminal against the accused.
provision of the Corporation Code. Such "damage" implies civil,
27
In the case at bar, it is unsettling to perceive a seeming lack of A motion to quash is the mode by which an accused assails, before
uniformity in the rulings of the Secretary of Justice on the issue of entering his plea, the validity of the criminal complaint or the
whether a violation of Section 31 entails criminal or only civil criminal information filed against him for insufficiency on its face
liability and such divergent actions are explained with a terse in point of law, or for defect apparent on the face of the
declaration of an alleged difference in factual milieu and nothing Information. The motion, as a rule, hypothetically admits the truth
further. Such a state of affairs is not only offensive to principles of of the facts spelled out in the complaint or information. The rules
fair play but also anathema to the orderly administration of governing a motion to quash are found under Rule 117 of the
justice. Indeed, we have held that where the action of the Secretary Revised Rules of Court. Section 3 of this Rule enumerates the
of Justice is tainted with arbitrariness, an aggrieved party may grounds for the quashal of a complaint or information. x x
seek judicial review via certiorari on the ground of grave abuse of x.43 (Citation omitted.)
discretion. 38
On the other hand, the action at bar is a review on certiorari of the
We likewise cannot give credit to respondent's claim of mootness. assailed Court of Appeals decision wherein the main issue is
The "moot and academic" principle is not a magical formula that whether or not the Secretary of Justice committed grave abuse of
can automatically dissuade the courts in resolving a case. 39 The discretion in reversing the City Prosecutor's dismissal of the
Court will not hesitate to resolve the legal and constitutional criminal complaint. These consolidated petitions may proceed
issues raised to formulate controlling principles to guide the regardless of whether or not there are grounds to quash the
bench, the bar, and the public, particularly on a question capable criminal information pending in the court a quo.
of repetition, yet evading review.40
Neither do we find relevant the pendency of petitioners' co-
As for the assertion that the present petitions are dismissible due accused's motion for judicial determination of probable cause
to forum shopping since they were filed during the pendency of before the trial court. The several accused in these consolidated
petitioners' motion to quash and their co-accused's motion for cases had a number of remedies available to them and they are
judicial determination of probable cause with the trial court, we each free to pursue the remedy which they deem is their best
hold that there is no cause to dismiss these petitions on such option. Certainly, there is no requirement that the different parties
ground. in a case must all choose the same remedy. We have held that even
assuming separate actions have been filed by different parties
Forum shopping is an act of a party, against whom an adverse involving essentially the same subject matter, no forum shopping
judgment or order has been rendered in one forum, of seeking and is committed where the parties did not resort to multiple judicial
possibly getting a favorable opinion in another forum, other than remedies.44 In any event, we have stated in the past that the rules
by appeal or special civil action for certiorari. It may also on forum shopping are not always applied with inflexibility. 45
involve the institution of two or more actions or proceedings
grounded on the same cause on the supposition that one or the As a final point on the technical aspects of this case, we reiterate
other court would make a favorable disposition. 41 There is no here the principle that in the exercise of the Court’s equity
forum shopping where the suits involve different causes of action jurisdiction, procedural lapses may be disregarded so that a case
or different reliefs. 42 may be resolved on its merits. 46 Indeed, where strong
considerations of substantive justice are manifest in a petition, the
Jurisprudence explains that: strict application of the rules of procedure may be relaxed. 47 This
28
is particularly true in these consolidated cases where legal issues SECTION 144. Violations of the Code. - Violations of any of the
of first impression have been raised. provisions of this Code or its amendments not otherwise
specifically penalized therein shall be punished by a fine of not less
We now proceed to rule upon the parties' substantive arguments. than one thousand (₱1,000.00) pesos but not more than ten
thousand (₱10,000.00) pesos or by imprisonment for not Jess than
The main bone of disagreement among the parties in this case is thirty (30) days but not more than five (5) years, or both, in the
the applicability of Section 144 of the Corporation Code to Sections discretion of the court. If the violation is committed by a
31 and 34 of the same statute such that criminal liability attaches corporation, the same may, after notice and hearing, be dissolved
to violations of Sections 31 and 34. For convenient reference, we in appropriate proceedings before the Securities and Exchange
quote the contentious provisions here: Commission: Provided, That such dissolution shall not preclude
the institution of appropriate action against the director, trustee
SECTION 31. Liability of Directors, Trustees or Officers. - Directors or officer of the corporation responsible for said
or trustees who willfully and knowingly vote for or assent to violation: Provided, further, That nothing in this section shall be
patently unlawful acts of the corporation or who are guilty of gross construed to repeal the other causes for dissolution of a
negligence or bad faith in directing the affairs of the corporation or corporation provided in this Code.
acquire any personal or pecuniary interest in conflict with their
duty as such directors or trustees shall be liable jointly and Petitioners posit that Section 144 only applies to the provisions of
severally for all damages resulting therefrom suffered by the the Corporation Code or its amendments "not otherwise
corporation, its stockholders or members and other persons. specifically penalized" by said statute and should not cover
Sections 31 and 34 which both prescribe the "penalties" for their
When a director, trustee or officer attempts to acquire or acquires, violation; namely, damages, accounting and restitution of profits.
in violation of his duty, any interest adverse to the corporation in On the other hand, respondent and the appellate court have taken
respect of any matter which has been reposed in him in the position that the term "penalized" under Section 144 should be
confidence, as to which equity imposes a disability upon him to interpreted as referring to criminal penalty, such as fine or
deal in his own behalf, he shall be liable as a trustee for the imprisonment, and that it could not possibly contemplate "civil"
corporation and must account for the profits which otherwise penalties such as damages, accounting or restitution.
would have accrued to the corporation.
As Section 144 speaks, among others, of the imposition of criminal
SECTION 34. Disloyalty of a Director. - Where a director, by virtue penalties, the Court is guided by the elementary rules of statutory
of his office, acquires for himself a business opportunity which construction of penal provisions. First, in all criminal prosecutions,
should belong to the corporation, thereby obtaining profits to the the existence of criminal liability for which the accused is made
prejudice of such corporation, he must account to the latter for all answerable must be clear and certain. We have consistently held
such profits by refunding the same, unless his act has been ratified that "penal statutes are construed strictly against the State and
by a vote of the stockholders owning or representing at least two- liberally in favor of the accused. When there is doubt on the
thirds (2/3) of the outstanding capital stock. This provision shall interpretation of criminal laws, all must be resolved in favor of the
be applicable, notwithstanding the fact that the director risked his accused. Since penal laws should not be applied mechanically, the
own funds in the venture. Court must determine whether their application is consistent with
the purpose and reason of the law."48
29
Intimately related to the in dubio pro reo49principle is the rule of may be dissolved in appropriate proceedings before the Securities
lenity. The rule applies when the court is faced with two possible and Exchange Commission. The involuntary dissolution of an
interpretations of a penal statute, one that is prejudicial to the erring corporation is not imposed as a criminal sanction, 53 but
accused and another that is favorable to him. The rule calls for the rather it is an administrative penalty.
adoption of an interpretation which is more lenient to the
accused. 50 The ambivalence in the language of Section 144 becomes more
readily apparent in comparison to the penal provision 54 in
In American jurisprudence, there are two schools of thought Republic Act No. 8189 (The Voter's Registration Act of 1996),
regarding the application of the rule of lenity. Justice David Souter, which was the subject of our decision in Romualdez v. Commission
writing for the majority in United States v. R.L.C.,51refused to resort on Elections.55In that case, we upheld the constitutionality of
to the rule and held that lenity is reserved "for those situations in Section 45(j) of Republic Act No. 8189 which made any violation of
which a reasonable doubt persists about a statute's intended said statute a criminal offense. It is respondent's opinion that the
scope even after resort to 'the language and structure, legislative penal clause in Section 144 should receive similar treatment and
history, and motivating policies' of the statute." Justice Antonin be deemed applicable to any violation of the Corporation Code.
Scalia, although concurring in part and concurring in the The Court cannot accept this proposition for there are weighty
judgment, argued that "it is not consistent with the rule of lenity to reasons to distinguish this case from Romualdez.
construe a textually ambiguous penal statute against a criminal
defendant on the basis of legislative history... The rule of lenity, in We find it apropos to quote Sections 45 and 46 of Republic Act No.
my view, prescribes the result when a criminal statute is 8189 here:
ambiguous: The more lenient interpretation must prevail."52 In
other words, for Justice Scalia, textual ambiguity in a penal statute SECTION 45. Election Qffense. - The following shall be
suffices for the rule of lenity to be applied. Although foreign case considered election offenses under this Act:
law is merely persuasive authority and this Court is not bound by
either legal perspective expounded in United States v. R.L.C., said a) to deliver, hand over, entrust or give, directly or indirectly, his
case provides a useful framework in our own examination of the voter's identification card to another in consideration of money or
scope and application of Section 144. other benefit or promise; or take or accept such voter's
identification card, directly or indirectly, by giving or causing the
After a meticulous consideration of the arguments presented by giving of money or other benefit or making or causing the making
both sides, the Court comes to the conclusion that there is textual of a promise therefor;
ambiguity in Section 144; moreover, such ambiguity remains even
after an examination of its legislative history and the use of other b) to fail, without cause, to post or give any of the notices or to
aids to statutory construction, necessitating the application of the make any of the reports required under this Act;
rule of lenity in the case at bar.
c) to issue or cause the issuance of a voter's identification number
Respondent urges this Court to strictly construe Section 144 as to cancel or cause the cancellation thereof in violation of the
contemplating only penal penalties. However, a perusal of Section provisions of this Act; or to refuse the issuance of registered voters
144 shows that it is not a purely penal provision. When it is a their voter's identification card;
corporation that commits a violation of the Corporation Code, it
30
d) to accept an appointment, to assume office and to actually serve less than one (1) year but not more than six (6) years and shall not
as a member of the Election Registration Board although ineligible be subject to probation. In addition, the guilty party shall be
thereto; to appoint such ineligible person knowing him to be sentenced to suffer disqualification to hold public office and
ineligible; deprivation of the right of suffrage. If he is a foreigner, he shall be
deported after the prison term has been served. Any political party
e) to interfere with, impede, abscond for purposes of gain or to found guilty shall be sentenced to pay a fine of not less than One
prevent the installation or use of computers and devices and the hundred thousand pesos (₱100,000) but not more than Five
processing, storage, generation and transmission of registration hundred thousand pesos (₱500,000).
data or information;
The crux of the Court's ruling in Romualdez is that, from the
f) to gain, cause access to, use, alter, destroy, or disclose any wording of Section 450), there is a clear legislative intent to treat
computer data, program, system software, network, or any as an election offense any violation of the provisions of Republic
computer-related devices, facilities, hardware or equipment, Act No. 8189. For this reason, we do not doubt that Section 46
whether classified or declassified; contemplates the term "penalty" primarily in the criminal law or
punitive concept of the term.
g) failure to provide certified voters and deactivated voters list to
candidates and heads or representatives of political parties upon There is no provision in the Corporation Code using similarly
written request as provided in Section 30 hereof; emphatic language that evinces a categorical legislative intent to
treat as a criminal offense each and every violation of that law.
h) failure to include the approved application form for registration Consequently, there is no compelling reason for the Court to
of a qualified voter in the book of voters of a particular precinct or construe Section 144 as similarly employing the term "penalized"
the omission of the name of a duly registered voter in the certified or "penalty" solely in terms of criminal liability.
list of voters of the precinct where he is duly registered resulting
in his failure to cast his vote during an election, plebiscite, In People v. Temporada, 56 we held that in interpreting penal laws,
referendum, initiative and/or recall. The presence of the form or "words are given their ordinary meaning and that any reasonable
name in the book of voters or certified list of voters in precincts doubt about the meaning is decided in favor of anyone subjected
other than where he is duly registered shall not be an excuse to a criminal statute." Black's Law Dictionary recognizes the
hereof; numerous conceptions of the term penalty and discusses in part
that it is "[a]n elastic term with many different shades of
i) The posting of a list of voters outside or at the door of a precinct meaning; it involves idea of punishment, corporeal or pecuniary,
on the day of an election, plebiscite, referendum, initiative and/or or civil or criminal, although its meaning is generally confined to
recall and which list is different in contents from the certified list pecuniary punishment."57 Persuasively, in Smith v. Doe,58the U.S.
of voters being used by the Board of Election Inspectors; and Supreme Court, interpreting a statutory provision that covers both
punitive and non-punitive provisions, held that:
j) Violation of any of the provisions of this Act.
The location and labels of a statutory provision do not by
SECTION 46. Penalties. - - Any person found guilty of any Election themselves transform a civil remedy into a criminal one. In 89
offense under this Act shall be punished with imprisonment of not Firearms, the Court held a forfeiture provision to be a civil
31
sanction even though the authorizing statute was in the criminal This provision shall not apply if the failure to organize, commence
code. The Court rejected the argument that the placement the transaction of its business or the construction of its works, or
demonstrated Congress' "intention to create an additional criminal to continuously operate is due to causes beyond the control of the
sanction," observing that "both criminal and civil sanctions may corporation as may be determined by the Securities and Exchange
be labeled 'penalties.'" (Emphasis supplied.) Commission.
Giving a broad and flexible interpretation to the term "penalized" SECTION 65. Liability of directors for watered stocks. - Any
in Section 144 only has utility if there are provisions in the director or officer of a corporation consenting to the issuance
Corporation Code that specify consequences other than "penal" or of stocks for a consideration less than its par or issued value
"criminal" for violation of, or non-compliance with, the tenets of or for a consideration in any form other than cash, valued in
the Code. Petitioners point to the civil liability prescribed in excess of its fair value, or who, having knowledge
Sections 31 and 34. Aside from Sections 31 and 34, we consider thereof, does not forthwith express his objection in writing and
these provisions of interest: file the same with the corporate secretary, shall be solidarily
liable with the stockholder concerned to the corporation and
SECTION 21. Corporation by Estoppel. - All persons who assume its creditors for the difference between the fair value received
to act as a corporation knowing it to be without authority to at the time of issuance of the stock and the par or issued value
do so shall be liable as general partners for all debts, of the same.
liabilities and damages incurred or arising as a
result thereof: Provided, however, That when any such ostensible SECTION 66. Interest on unpaid subscriptions. - Subscribers for
corporation is sued on any transaction entered by it as a stock shall pay to the corporation interest on all unpaid
corporation or on any tort committed by it as such, it shall not be subscriptions from the date of subscription, if so required by, and
allowed to use as a defense its lack of corporate personality. at the rate of interest fixed in, the by-laws. If no rate of interest is
fixed in the bylaws, such rate shall be deemed to be the legal rate.
One who assumes an obligation to an ostensible corporation as
such, cannot resist performance thereof on the ground that there SECTION 67. Payment of balance of subscription. - Subject to the
was in fact no corporation. provisions of the contract of subscription, the board of directors of
any stock corporation may at any time declare due and payable to
SECTION 22. Effects of non-use of corporate charter and continuous the corporation unpaid subscriptions to the capital stock and may
inoperation of a corporation. - If a corporation does not formally collect the same or such percentage of said unpaid subscriptions,
organize and commence the transaction of its business or the in either case with interest accrued, if any, as it may deem
construction of its works within two (2) years from the date of necessary.
its incorporation, its corporate powers cease and the
corporation shall be deemed dissolved. However, if a Payment of any unpaid subscription or any percentage thereof,
corporation has commenced the transaction of its business but together with the interest accrued, if any, shall be made on the
subsequently becomes continuously inoperative for a period of at date specified in the contract of subscription or on the date stated
least five (5) years, the same shall be a ground for the suspension in the call made by the board. Failure to pay on such date shall
or revocation of its corporate franchise or certificate of render the entire balance due and payable and shall make the
incorporation. stockholder liable for interest at the legal rate on such
32
balance, unless a different rate of interest is provided in the section for such action shall be imposed upon the directors or
by-laws, computed from such date until full payment. If within trustees who voted for such refusal: and Provided, further, That it
thirty (30) days from the said date no payment is made, all stocks shall be a defense to any action under this section that the person
covered by said subscription shall thereupon become demanding to examine and copy excerpts from the corporation's
delinquent and shall be subject to sale as hereinafter provided, records and minutes has improperly used any information secured
unless the board of directors orders otherwise. through any prior examination of the records or minutes of such
corporation or of any other corporation, or was not acting in good
SECTION 74. Books to be kept; stock transfer agent. - Every faith or for a legitimate purpose in making his demand.
corporation shall, at its principal office, keep and carefully
preserve a record of all business transactions, and minutes of all Stock corporations must also keep a book to be known as the
meetings of stockholders or members, or of the board of directors "stock and transfer book", in which must be kept a record of all
or trustees, in which shall be set forth in detail the time and place stocks in the names of the stockholders alphabetically arranged;
of holding the meeting, how authorized, the notice given, whether the installments paid and unpaid on all stock for which
the meeting was regular or special, if special its object, those subscription has been made, and the date of payment of any
present and absent, and every act done or ordered done at the installment; a statement of every alienation, sale or transfer of
meeting. Upon the demand of any director, trustee, stockholder or stock made, the date thereof, and by and to whom made; and such
member, the time when any director, trustee, stockholder or other entries as the by-laws may prescribe. The stock and transfer
member entered or left the meeting must be noted in the minutes; book shall be kept in the principal office of the corporation or in
and on a similar demand, the yeas and nays must be taken on any the office of its stock transfer agent and shall be open for
motion or proposition, and a record thereof carefully made. The inspection of any director or stockholder of the corporation at
protest of any director, trustee, stockholder or member on any reasonable hours on business days.
action or proposed action must be recorded in full on his demand.
No stock transfer agent or one engaged principally in the business
The records of all business transactions of the corporation and the of registering transfer of stocks in behalf of a stock corporation
minutes of any meeting shall be open to the inspection of any shall be allowed to operate in the Philippines unless he secures a
director, trustee, stockholder or member of the corporation at license from the Securities and Exchange Commission and pays a
reasonable hours on business days and he may demand, in writing, fee as may be fixed by the Commission, which shall be renewed
for a copy of excerpts from said records or minutes, at his expense. annually: Provided, That a stock corporation is not precluded from
performing or making transfer of its own stocks, in which case all
Any officer or agent of the corporation who shall refuse to the rules and regulations imposed on stock transfer agents, except
allow any director, trustee, stockholder or member of the the payment of a license fee herein provided, shall be applicable.
corporation to examine and copy excerpts from its records or
minutes, in accordance with the provisions of this Code, shall Section 22 imposes the penalty of involuntary dissolution for non-
be liable to such director, trustee, stockholder or member for use of corporate charter. The rest of the above-quoted provisions,
damages, and in addition, shall be guilty of an offense which like Sections 31 and 34, provide for civil or pecuniary liabilities for
shall be punishable under Section 144 of this the acts covered therein but what is significant is the fact that, of
Code: Provided, That if such refusal is pursuant to a resolution or all these provisions that provide for consequences other than
order of the board of directors or trustees, the liability under this penal, only Section 74 expressly states that a violation thereof is
33
likewise considered an offense under Section 144. If respondent consequences of such acts or omissions amounting to a failure to
and the Court of Appeals are correct, that Section 144 fulfil a director's or corporate officer's fiduciary duties to the
automatically imposes penal sanctions on violations of provisions corporation. A closer look at the subsequent deliberations on C.B.
for which no criminal penalty was imposed, then such language in No. 3, particularly in relation to Sections 31 and 34, would show
Section 74 defining a violation thereof as an offense would have that the discussions focused on the civil liabilities or consequences
been superfluous. There would be no need for legislators to clarify prescribed in said provisions themselves. We quote the pertinent
that, aside from civil liability, violators of Section 7 4 are exposed portions of the legislative records:
to criminal liability as well. We agree with petitioners that the lack
of specific language imposing criminal liability in Sections 31 and On Section 31
34 shows legislative intent to limit the consequences of their
violation to the civil liabilities mentioned therein. Had it been the (Period of Sponsorship, December 4, 1979 Session)
intention of the drafters of the law to define Sections 31 and 34 as
offenses, they could have easily included similar language as that MR. LEGASPI. x x x.
found in Section 74.
In Section 31 page 22, it seems that the proviso is to make
If we were to employ the same line of reasoning as the majority the directors or the trustees who willfully and knowingly vote
in United States v. R.L.C., would the apparent ambiguities in the text for or assent to patently unlawful act or guilty of gross
of the Corporation Code disappear with an analysis of said negligence or bad faith in directing the affairs of the
statute's legislative history as to warrant a strict interpretation of corporation would be solidarily liable with the
its provisions? The answer is a negative. officers concerned.
In his sponsorship speech of Cabinet Bill (C.B.) No. 3 (the bill that Now, would this, Your Honor, not discourage the serving of
was enacted into the Corporation Code), then Minister Estelito competent people as members of the Board of Directors,
Mendoza highlighted Sections 31 to 34 as among the significant considering that they might feel that in the event things would
innovations made to the previous statute (Act 1459 or the do badly against the corporation, they might be held liable
Corporation Law), thusly: personally for acts which should be attributed only to the
corporation?
There is a lot of jurisprudence on the liability of directors, trustees
or officers for breach of trust or acts of disloyalty to the MR. MENDOZA. Your Honor will note that the directors or trustees
corporation. Such jurisprudence is not, of course, without any who are held liable must be proven to have acted willfully and
ambiguity of dissent. Sections 31, 32, 33 and 34 of the code knowingly, or if not willfully and knowingly, it must be proven that
indicate in detail prohibited acts in this area as well as they acted with gross negligence or bad faith. It must also be
consequences of the performance of such acts or failure to demonstrated that the acts done were patently unlawful. So, the
perform or discharge the responsibility to direct the affairs of the requirement for liability is somewhat serious to the point of: in my
corporation with utmost fidelity. 50 opinion, being extreme. It will be noted that this provision does
not merely require assenting to patently unlawful acts. It does not
Alternatively stated, Sections 31 to 34 were introduced into the merely require being negligent. The provision requires that they
Corporation Code to define what acts are covered, as well as the
34
assent to patently unlawful acts willfully and with knowledge of directors or trustees responsible for everything, then no one
the illegality of the act. will serve as director or trustee of any corporation. But, he is
made liable so long as he willfully and knowingly votes for or
Now, it might be true, as Your Honor suggested, that some persons assent to patently unlawful acts of the corporation. So it is also to
will be discouraged or disinclined to agree to serve the Board of protect the director [or] trustees from liability for acts that was
Directors because of this liability. But at the same time not patently unlawful.
this provision - Section 31 - is really no more than a
consequence of the requirement that the position of MR. MILLORA. With that explanation, Your Honor, I will not
membership in the Board of Directors is a position of high proceed with my proposed amendment.61
responsibility and great trust. Unless a provision such as this is
included, then that requirement of responsibility and trust will not On Section 34
be as meaningful as it should be. For after all, directors may take
the attitude that unless they themselves commit the act, they (Period of Sponsorship, November 5, 1979 Session)
would not be liable. But the responsibility of a director is not
merely to act properly. The responsibility of a director is to assure MR. NUÑ EZ. x x x
that the Board of Directors, which means his colleagues acting
together, does not act in a manner that is unlawful or to the May I go now to page 24, Section 34.
prejudice of the corporation because of personal or pecuniary
interest of the directors.60 (Emphases supplied.) "Disloyalty of a Director -- Where a director by virtue of his office
acquires for himself a business opportunity which should belong
(Period of Amendments, March 11, 1980 Session) to the corporation thereby obtaining profits to the prejudice of the
corporation, he must account to the latter for all such profits,
MR. MILLORA. On line 16, Section 31, referring to the phrase unless his act has been ratified by a vote of the stockholders
"patently unlawful acts." Before J introduce my proposed owning or representing at least two-thirds (2/3) of the
amendment to delete the word "patently" is there a reason for outstanding capital stock. This provision shall be applicable
placing this adjective before the word "unlawful", Your Honor? notwithstanding the fact that the director risked his own funds in
the venture."
MR. ABELLO. Probably the one who prepared this original draft of
Cabinet Bill No. 3 wanted to make sure that a director or trustee is My question, Your Honor, is: is this not the so-called corporate
not [made] liable for an act that is not clearly unlawful, so he used opportunity doctrine found in the American jurisprudence?
a better word than "clearly," he used the word "patently."
MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes
MR. MILLORA. So, in that case, Your Honor, a director may not be that have been incorporated in the Code were drawn from
liable for certain unlawful acts. Is that right, Your Honor? jurisprudence on the matter, but even jurisprudence on several
matters or several issues relating to the Corporation Code are
MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use sometimes ambiguous, sometimes controversial. In order,
of the word "patently" is also to give some kind of protection to therefore, to clarify those issues, what was done was to spell out
the directors or trustees. Because if you will hold the
35
in statutory language the rule that should be applied on those after which then he may avail of it. Under such circumstances I do
matters and one of such examples is Section 34. not believe he would expose himself to the consequences
provided for under Section 34.
MR. NUÑ EZ. Does not His Honor believe that to codify this
particular document into law may lead to absurdity or confusion Precisely, the reason we have laid down this ruling in statutory
as the cited doctrine is subject to many qualifications depending language is that for as long as the rule is not clarified there will be
on the peculiar nature of the case? ambiguity in the matter. And directors of corporations who may
acquire knowledge of such opportunities would always be risking
Let us suppose that there is a business opportunity that the consequences not knowing how the courts will later on decide
corporation did not take advantage of or was not interested in. such issues. But now with the statutory rule, any director who
Would you hold the director responsible for acquiring the interest comes to know of an opportunity that may be available to the
despite the fact that the corporation did not take advantage of or corporation would be aware of the consequences in case he
was not interested in that particular business venture? Does not avails of' that opportunity without giving the corporation the
His Honor believe that this should be subject to qualifications and privilege of deciding beforehand on whether to take advantage of
should be dealt with on a case-to-case basis depending on the it or not.
circumstances of the case?
MR. NUÑ EZ. Let us take the case of a corporation where, from all
MR. MENDOZA. If a director is prudent or wise enough, then he indications, the corporation was aware of this business
can protect himself in such contingency. If he is aware of a opportunity and despite this fact, Your Honor, and the failure of
business opportunity, he can make it known to the the director to communicate the venture to the corporation, the
corporation, propose it to the corporation, and allow the director entered into the business venture. Is the director liable,
corporation to reject it, after which he, certainly, may avail of Your Honor, despite the fact that the corporation has knowledge,
it without risk of the consequences provided for in Section 34. Your Honor, from all indications, from all facts, from all
circumstances of the case, the corporation is aware?
MR. NUÑ EZ. I see. So that the position of Your Honor is that the
matter should be communicated to the corporation, the matter of MR. MENDOZA. First of all, to say that a corporation has
the director acquiring the business opportunity should be knowledge is itself a point that can be subject of an argument.
communicated to the corporation and that if it is not When does a corporation have knowledge -· when its president
communicated to the corporation, the director will be responsible. comes to know of the fact, when its general manager knows of the
Is that the position of His Honor? fact, when one or two of the directors know of that fact, when a
majority of the directors come to know of that fact? So that in itself
MR. MENDOZA. In my opinion it must not only be made known to is a matter of great ambiguity, when one says it has knowledge.
the corporation; the corporation must be formally advised and if
he really would like to be assured that he is protected against That is why when I said that a prudent director, who would
the consequences provided for in Section 34, he should take assure that he does not become liable under Section 34,
such steps whereby the opportunity is clearly presented to the should not only be sure that the corporation has official
corporation and the corporation has the opportunity to decide on knowledge, that is, the Board of Directors, but must take steps,
whether to avail of it or not and then let the corporation reject it, positive steps, which will demonstrate that the matter or
36
opportunity \Vas brought before the corporation for its decision Your Honor, it is provided that a director, who by virtue of his
whether to avail of it or not, and the corporation rejected it. office acquires for himself a business opportunity which should
belong to the corporation thereby obtaining profits to the
So, under those circumstances narrated by Your Honor, it is my prejudice of such corporation, must account to the corporation for
view that the director will be liable, unless his acts are ratified all such profits unless his act has been ratified by a vote of the
later by the vote of stockholders holding at least 2/3 of the stockholders owning or representing at least two-thirds (2/3) of
outstanding capital stock. the outstanding capital stock.
MR. NUÑ EZ. Your Honor has already raised the possible However, Your Honor, the right to ratification would serve to
complications that may arise out of this particular provision. My defeat the intention of this provision. This is possible if the
question is: how can we remedy the situation? Is there a necessity, director or officer is the controlling stockholder.
Your Honor, of a formal notice to the corporation that it should be
placed in the agenda, in a meeting or a special 01 regular meeting It is, therefore, suggested, Your Honor, that the twenty per cent
of the corporation that such a business venture exists, that the (20%) stockholding limit be applied here in which case, over
corporation should take advantage of this business venture before twenty per cent limit, said director or officer is disallowed to
a director can be held not responsible for acquiring this business participate in the ratification. And this is precisely the point I was
venture? driving at in the previous section, Your Honor.
MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is MR. ABELLO. Your Honor, I see the point that Your Honor has
what a prudent director should do. If he does not wish to be in any raised and that will be considered by the committee at an
way handicapped in availing of business opportunities, he should, appropriate time.
to the same degree, be circumspect in accepting directorships in
corporations. If he wants to be completely free to avail of any MR. CAMARA. Thank you, Your Honor.
opportunity which may come his way, he should not accept the
position of director in any corporation which he may anticipate Further, under the same provision, it is not clear as to what
may be dealing in a business in connection with which he may "account to the corporation" means or what it includes. Is the
acquire a certain interest. offender liable for the profits in favor of the corporation?
The purpose of all these provisions is to assure that MR. ABELLO. Yes, that is what it means.
directors or corporations constantly – not only constantly
remember but actually are imposed with certain positive MR. CAMARA. Or he be merely made to account?
obligations that at least would assure that they will discharge
their responsibilities with utmost fidelity. 62 MR. ABELLO. Well, Your Honor, when the law says "'He must
account to the latter for an such profits," that means that he is
(December 5, 1979 Session) liable to the corporation for such profits.
MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines MR. CAMARA. Who gets the profits then, Your Honor?
1 to 20, Section 34 - Disloyalty of a director.
37
MR. ABELLO. The corporation itself. MR. ABELLO. Mr. Speaker, the committee accepts the
amendment.64 (Emphases and underscoring supplied.)
MR. CAMARA. The corporation?
Verily, in the instances that Sections 31 and 34 were taken up on
MR. ABELLO. Correct. the floor, legislators did not veer away from the civil consequences
as stated within the four comers of these provisions. Contrasted
MR. CAMARA. Thank you, Your Honor. with the interpellations on Section 74 (regarding the right to
inspect the corporate records), the discussions on said provision
Supposing under the same section, Your Honor, the director took leave no doubt that legislators intended both civil and penal
the opportunity after resigning as director or officer? It is liabilities to attach to corporate officers who violate the same, as
suggested, Your Honor, that this should be clarified because the was repeatedly stressed in the excerpts from the legislative record
resigning director can take the opportunity of this transaction quoted below:
before he resigns.
On Section 74:
MR. ABELLO. If Your Honor refers to the fact that he took that
opportunity while he was a director, Section 34, would apply. But (Period of Sponsorship, December 10, 1979 Session)
if the action was made after his resignation as a director of the
corporation, then Section 34 would not apply. 63 MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished
sponsor has in mind a particular situation where a minority
(Period of Amendments, March 11, 1980 Session) shareholder is one of the thousands of shareholders. But I present
a situation, Your Honor, where the minority is 49% owner of a
MR. CAMARA. This is on Section 34, page 24, line 15, I propose to corporation and here comes this minority shareholder wanting,
insert between the word "profits'' and the comma (,) the words BY but a substantial minority, and yet he cannot even have access to
REFUNDING THE SAME. So that the first sentence, lines 11 to 18 of the records of this corporation over which he owns almost one-
said section, as modified, shall read as follows: half because, precisely, of this particular provision of law. 65
"SEC. 34. Disloyalty of a director. - Where a director by virtue of his MR. MENDOZA. He will not have access if the grounds expressed in
office acquires for himself a business opportunity which should the proviso are present. It must also be noted, Mr. Speaker, that
belong to the corporation thereby obtaining profits to the the provision before us would, let us say, make it very difficult
prejudice of such corporation, he must account to the latter for all for corporate officers to act unreasonably because they are not
such profits BY REFUNDING THE SAME, unless his act has been only subject to a suit which would compel them to allow the
ratified by a vote of the stockholders owning or representing at access to corporate records, they are also liable for
least two-thirds (2/3) of the outstanding capital stock." damages and are in fact guilty of a penal act under Section
143.66
The purpose of this amendment, Mr. Speaker, is to clarify as
to what to account to the corporation. MR. TUPAZ. That is correct, Your Honor.
38
MR. MENDOZA. So that when corporate officers deny access to a In Crandon v. United States,71the U.S. Supreme Court had the
shareholder, they do so under very serious consequences. If they occasion to state that:
should err in making that decision and it is demonstrated that they
have erred deliberately, they expose themselves In determining the meaning of the statute, we look not only to
to damages and even to certain penal sanctions. the particular statutory language, but to the design of the
statute as a whole and to its object and policy. Moreover,
xxxx because the governing standard is set forth in a criminal statute, it
is appropriate to apply the rule of lenity in resolving any
As I said, Your Honor, I think it is fair enough to assume that ambiguity in the ambit of the statute's coverage. To the extent that
persons do not act deliberately in bad faith, that they do not act the language or history of [the statute] is uncertain, this "time-
deliberately to expose themselves to damages, or to penal honored interpretive guideline" serves to ensure both that there
sanctions. In the ultimate, I would agree that certain decisions is fair warning of the boundaries of criminal conduct and that
may be unnecessarily harsh and prejudicial. But by and large, I legislatures, not courts, define criminal liability. (Citations
think, the probabilities are in favor of a decision being reasonable omitted; emphases supplied.)
and in accord with the interest of the corporation. 67 (Emphases
and underscoring supplied.) Under the circumstances of this case, we are convinced to adopt a
similar view. For this reason, we take into account the avowed
Quite apart that no legislative intent to criminalize Sections 31 and legislative policy in the enactment of the Corporation Code as
34 was manifested in the deliberations on the Corporation Code, it outlined in the Sponsorship Speech of Minister Mendoza:
is noteworthy from the same deliberations that legislators
intended to codify the common law concepts of corporate Cabinet Bill No. 3 is entitled "The Corporation Code of the
opportunity and fiduciary obligations of corporate officers as Philippines." Its consideration at this time in the history of our
found in American jurisprudence into said provisions. In common nation provides a fitting occasion to remind that under our
law, the remedies available in the event of a breach of director's Constitution the economic system known as "free enterprise"
fiduciary duties to the corporation are civil remedies. If a director is recognized and protected. We acknowledge as a democratic
or officer is found to have breached his duty of loyalty, an republic that the individual must be free and that as a free man -
injunction may be issued or damages may be awarded. 68 A "free to choose his work and to retain the fruits of his labor" - he
corporate officer guilty of fraud or mismanagement may be held may best develop his capabilities and will produce and supply
liable for lost profits. 69 A disloyal agent may also suffer forfeiture the economic needs of the nation.
of his compensation. 70 There is nothing in the deliberations to
indicate that drafters of the Corporation Code intended to deviate xxxx
from common law practice and enforce the fiduciary obligations of
directors and corporate officers through penal sanction aside from The formation and organization of private corporations, and I
civil liability. On the contrary, there appears to be a concern underscore private corporations as distinguished from
among the drafters of the Corporation Code that even the corporations owned or controlled by the government or any
imposition of the civil sanctions under Section 31 and 34 might subdivision or instrumentality thereof, gives wider dimensions
discourage competent persons from serving as directors in to free enterprise or free trade. For not only is the right of
corporations. individuals to organize collectively recognized; the collective
39
organization is vested with a juridical personality distinct from controversy in the consolidated cases at bar. The declaration of the
their own. Thus "the skill, dexterity, and judgment" of a nation's Court in Home Insurance Company v. Eastern Shipping Lines 73that
labor force need not be constricted in their application to those of "[t]he prohibition against doing business without first securing a
an individual or that which he alone may assemble but to those of license [under Section 133] is now given penal sanction which is
a collective organization. also applicable to other violations of the Corporation Code under
the general provisions of Section 144 of the Code" is
While a code, such as the proposed code now before us, may unmistakably obiter dictum. We explained in another case:
appear essentially regulatory in nature, it does not, and is not
intended, to curb or stifle the use of the corporate entity as a An obiter dictum has been defined as an opinion expressed by a
business organization. Rather, the proposed code recognizes the court upon some question of law that is not necessary in the
value, and seeks to inspire confidence in the value of the corporate determination of the case before the court. It is a remark made, or
vehicle in the economic life of society. 72 (Emphases supplied.) opinion expressed, by a judge, in his decision upon a cause by the
way, that is, incidentally or collaterally, and not directly upon the
The Corporation Code was intended as a regulatory measure, not question before him, or upon a point not necessarily involved in
primarily as a penal statute. Sections 31 to 34 in particular were the determination of the cause, or introduced by way of
intended to impose exacting standards of fidelity on corporate illustration, or analogy or argument. It does not embody the
officers and directors but without unduly impeding them in the resolution or determination of the court, and is made without
discharge of their work with concerns of litigation. Considering the argument, or full consideration of the point. It lacks the force
object and policy of the Corporation Code to encourage the use of of an adjudication, being a mere expression of an opinion
the corporate entity as a vehicle for economic growth, we cannot with no binding force for purposes of res judicata.74(Emphasis
espouse a strict construction of Sections 31 and 34 as penal supplied.)
offenses in relation to Section 144 in the absence of unambiguous
statutory language and legislative intent to that effect. The issue in the Home Insurance Company case was whether or
not a foreign corporation previously doing business here without a
When Congress intends to criminalize certain acts it does so in license has the capacity to sue in our courts when it had already
plain, categorical language, otherwise such a statute would be acquired the necessary license at the time of the filing of the
susceptible to constitutional attack. As earlier discussed, this can complaints. The Court ruled in the affirmative. The statement
be readily seen from the text of Section 450) of Republic Act No. regarding the supposed penal sanction for violation of Section 133
8189 and Section 74 of the Corporation Code. of the Corporation Code was not essential to the resolution of the
case as none of the parties was being made criminally liable under
We stress that had the Legislature intended to attach penal Section 133.
sanctions to Sections 31 and 34 of the Corporation Code it could
have expressly stated such intent in the same manner that it did As for respondent's allusion to Genuino v. National Labor Relations
for Section 74 of the same Code. Commission, 75 we find the same unavailing. Genuino involved the
appeal of an illegal dismissal case wherein it was merely
At this point, we dispose of some related arguments raised in the mentioned in the narration of facts that the employer-bank also
pleadings. We do not agree with respondent Tullett that previous filed criminal complaints against its dismissed corporate officers
decisions of this Court have already settled the matter in for alleged violation of Section 31 in relation to Section 144 of the
40
Corporation Code. The interpretation of said provisions of the 15, 2009 of the Secretary of Justice in I.S. No. 08-J-8651
Corporation Code in the context of a criminal proceeding are REVERSED and SET ASIDE.
was not at issue in that case.
SO ORDERED.
As additional support for its contentions, respondent cites several
opinions of the SEC, applying Section 144 to various violations of TERESITA J. LEONARDO-DE CASTRO
the Corporation Code in the imposition of graduated fines. In Associate Justice
respondent's view, these opinions show a consistent
administrative interpretation on the applicability of Section 144 to WE CONCUR:
the other provisions of the Corporation Code and allegedly render
absurd petitioners' concern regarding the "over-criminalization" MARIA LOURDES P.A. SERENO
of the Corporation Code. We find respondent's reliance on these Chief Justice
SEC opinions to be misplaced. As petitioners correctly point out, Chairperson
the fines imposed by the SEC in these instances of violations of the
Corporation Code are in the nature of administrative fines and are MARIANO C. DEL CASTILLO FRANCIS H. JARDELEZA*
not penal in nature. Without ruling upon the soundness of the legal Associate Justice Associate Justice
reasoning of the SEC in these opinions, we note that these opinions
in fact support the view that even the SEC construes "penalty" as
used in Section 144 as encompassing administrative penalties, not ALFREDO BENJAMIN S. CAGUIOA
only criminal sanctions. In all, these SEC issuances weaken rather Associate Justice
than strengthen respondent's case.
CERTIFICATION
With respect to the minutiae of other arguments cited in the
parties' pleadings, it is no longer necessary for the Court to pass Pursuant to the Section 13, Article VIII of the Constitution, I certify
upon the same in light of our determination that there is no clear, that the conclusions in the above Decision had been reached in
categorical legislative intent to define Sections 31 and 34 as consultation before the case was assigned to the writer of the
offenses under Section 144 of the Corporation Code. We likewise opinion of the Court’s Division.
refrain from resolving the question on the constitutionality of
Section 144 of the Corporation Code. It is a long standing principle MARIA LOURDES P.A. SERENO
in jurisprudence that "courts will not resolve the constitutionality Chief Justice
of a law, if the controversy can be settled on other grounds. The
policy of the courts is to avoid ruling on constitutional questions
and to presume that the acts of the political departments are valid,
absent a clear and unmistakable showing to the contrary." 76
WHEREFORE, the consolidated petitions are GRANTED. The

Decision dated August 12, 2009 of the Court of Appeals in CA-G.R.
SP No. 109094 and the Resolutions dated April 23, 2009 and May
41
Republic of the Philippines "The testimony of the plaintiff disclosed that he is an Iranian
SUPREME COURT national. He came to the Philippines to study in the University of
Manila the Philippines in 1974. In 1976, under the regime of the Shah of
Iran, he was appointed Labor Attaché for the Iranian Embassies in
FIRST DIVISION Tokyo, Japan and Manila, Philippines. When the Shah of Iran was
deposed by Ayatollah Khomeini, plaintiff became a refugee of the
G.R. No. 142396 February 11, 2003 United Nations and continued to stay in the Philippines. He headed
the Iranian National Resistance Movement in the Philippines.
KHOSROW MINUCHER, petitioner,
vs. "He came to know the defendant on May 13, 1986, when the latter
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents. was brought to his house and introduced to him by a certain Jose
Iñ igo, an informer of the Intelligence Unit of the military. Jose
DECISION Iñ igo, on the other hand, was met by plaintiff at the office of Atty.
Crisanto Saruca, a lawyer for several Iranians whom plaintiff
VITUG, J.: assisted as head of the anti-Khomeini movement in the
Philippines.
Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the "Dangerous "During his first meeting with the defendant on May 13, 1986,
Drugs Act of 1972," was filed against petitioner Khosrow Minucher upon the introduction of Jose Iñ igo, the defendant expressed his
and one Abbas Torabian with the Regional Trial Court, Branch interest in buying caviar. As a matter of fact, he bought two kilos of
151, of Pasig City. The criminal charge followed a "buy-bust caviar from plaintiff and paid P10,000.00 for it. Selling caviar,
operation" conducted by the Philippine police narcotic agents in aside from that of Persian carpets, pistachio nuts and other Iranian
the house of Minucher, an Iranian national, where a quantity of products was his business after the Khomeini government cut his
heroin, a prohibited drug, was said to have been seized. The pension of over $3,000.00 per month. During their introduction in
narcotic agents were accompanied by private respondent Arthur that meeting, the defendant gave the plaintiff his calling card,
Scalzo who would, in due time, become one of the principal which showed that he is working at the US Embassy in the
witnesses for the prosecution. On 08 January 1988, Presiding Philippines, as a special agent of the Drug Enforcement
Judge Eutropio Migrino rendered a decision acquitting the two Administration, Department of Justice, of the United States, and
accused. gave his address as US Embassy, Manila. At the back of the card
appears a telephone number in defendant’s own handwriting, the
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before number of which he can also be contacted.
the Regional Trial Court (RTC), Branch 19, of Manila for damages
on account of what he claimed to have been trumped-up charges "It was also during this first meeting that plaintiff expressed his
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed desire to obtain a US Visa for his wife and the wife of a countryman
what it had found to be the facts and circumstances surrounding named Abbas Torabian. The defendant told him that he [could]
the case. help plaintiff for a fee of $2,000.00 per visa. Their conversation,
however, was more concentrated on politics, carpets and caviar.
Thereafter, the defendant promised to see plaintiff again.
42
"On May 19, 1986, the defendant called the plaintiff and invited who was at that time at the boutique near his house and likewise
the latter for dinner at Mario's Restaurant at Makati. He wanted to arrested Torabian, who was playing chess with him in the
buy 200 grams of caviar. Plaintiff brought the merchandize but for bedroom and both were handcuffed together. Plaintiff was not told
the reason that the defendant was not yet there, he requested the why he was being handcuffed and why the privacy of his house,
restaurant people to x x x place the same in the refrigerator. especially his bedroom was invaded by defendant. He was not
Defendant, however, came and plaintiff gave him the caviar for allowed to use the telephone. In fact, his telephone was unplugged.
which he was paid. Then their conversation was again focused on He asked for any warrant, but the defendant told him to `shut up.’
politics and business. He was nevertheless told that he would be able to call for his
lawyer who can defend him.
"On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted "The plaintiff took note of the fact that when the defendant invited
to buy a pair of carpets which plaintiff valued at $27,900.00. After him to come out to meet his cousin, his safe was opened where he
some haggling, they agreed at $24,000.00. For the reason that kept the $24,000.00 the defendant paid for the carpets and
defendant did not yet have the money, they agreed that defendant another $8,000.00 which he also placed in the safe together with a
would come back the next day. The following day, at 1:00 p.m., he bracelet worth $15,000.00 and a pair of earrings worth
came back with his $24,000.00, which he gave to the plaintiff, and $10,000.00. He also discovered missing upon his release his 8
the latter, in turn, gave him the pair of carpets.1awphi1.nét pieces hand-made Persian carpets, valued at $65,000.00, a
painting he bought for P30,000.00 together with his TV and
"At about 3:00 in the afternoon of May 27, 1986, the defendant betamax sets. He claimed that when he was handcuffed, the
came back again to plaintiff's house and directly proceeded to the defendant took his keys from his wallet. There was, therefore,
latter's bedroom, where the latter and his countryman, Abbas nothing left in his house.
Torabian, were playing chess. Plaintiff opened his safe in the
bedroom and obtained $2,000.00 from it, gave it to the defendant "That his arrest as a heroin trafficker x x x had been well
for the latter's fee in obtaining a visa for plaintiff's wife. The publicized throughout the world, in various newspapers,
defendant told him that he would be leaving the Philippines very particularly in Australia, America, Central Asia and in the
soon and requested him to come out of the house for a while so Philippines. He was identified in the papers as an international
that he can introduce him to his cousin waiting in a cab. Without drug trafficker. x x x
much ado, and without putting on his shirt as he was only in his
pajama pants, he followed the defendant where he saw a parked In fact, the arrest of defendant and Torabian was likewise on
cab opposite the street. To his complete surprise, an American television, not only in the Philippines, but also in America and in
jumped out of the cab with a drawn high-powered gun. He was in Germany. His friends in said places informed him that they saw
the company of about 30 to 40 Filipino soldiers with 6 Americans, him on TV with said news.
all armed. He was handcuffed and after about 20 minutes in the
street, he was brought inside the house by the defendant. He was "After the arrest made on plaintiff and Torabian, they were
made to sit down while in handcuffs while the defendant was brought to Camp Crame handcuffed together, where they were
inside his bedroom. The defendant came out of the bedroom and detained for three days without food and water."1
out from defendant's attaché case, he took something and placed it
on the table in front of the plaintiff. They also took plaintiff's wife
43
During the trial, the law firm of Luna, Sison and Manas, filed a reception of evidence. On 12 March 1990, Scalzo filed a motion to
special appearance for Scalzo and moved for extension of time to set aside the order of default and to admit his answer to the
file an answer pending a supposed advice from the United States complaint. Granting the motion, the trial court set the case for pre-
Department of State and Department of Justice on the defenses to trial. In his answer, Scalzo denied the material allegations of the
be raised. The trial court granted the motion. On 27 October 1988, complaint and raised the affirmative defenses (a) of Minucher’s
Scalzo filed another special appearance to quash the summons on failure to state a cause of action in his complaint and (b) that
the ground that he, not being a resident of the Philippines and the Scalzo had acted in the discharge of his official duties as being
action being one in personam, was beyond the processes of the merely an agent of the Drug Enforcement Administration of the
court. The motion was denied by the court, in its order of 13 United States Department of Justice. Scalzo interposed a
December 1988, holding that the filing by Scalzo of a motion for counterclaim of P100,000.00 to answer for attorneys' fees and
extension of time to file an answer to the complaint was a expenses of litigation.
voluntary appearance equivalent to service of summons which
could likewise be construed a waiver of the requirement of formal Then, on 14 June 1990, after almost two years since the institution
notice. Scalzo filed a motion for reconsideration of the court order, of the civil case, Scalzo filed a motion to dismiss the complaint on
contending that a motion for an extension of time to file an answer the ground that, being a special agent of the United States Drug
was not a voluntary appearance equivalent to service of summons Enforcement Administration, he was entitled to diplomatic
since it did not seek an affirmative relief. Scalzo argued that in immunity. He attached to his motion Diplomatic Note No. 414 of
cases involving the United States government, as well as its the United States Embassy, dated 29 May 1990, addressed to the
agencies and officials, a motion for extension was peculiarly Department of Foreign Affairs of the Philippines and a
unavoidable due to the need (1) for both the Department of State Certification, dated 11 June 1990, of Vice Consul Donna
and the Department of Justice to agree on the defenses to be raised Woodward, certifying that the note is a true and faithful copy of its
and (2) to refer the case to a Philippine lawyer who would be original. In an order of 25 June 1990, the trial court denied the
expected to first review the case. The court a quo denied the motion to dismiss.
motion for reconsideration in its order of 15 October 1989.
On 27 July 1990, Scalzo filed a petition for certiorari with
Scalzo filed a petition for review with the Court of Appeals, there injunction with this Court, docketed G.R. No. 94257 and entitled
docketed CA-G.R. No. 17023, assailing the denial. In a decision, "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that
dated 06 October 1989, the appellate court denied the petition and the complaint in Civil Case No. 88-45691 be ordered dismissed.
affirmed the ruling of the trial court. Scalzo then elevated the The case was referred to the Court of Appeals, there docketed CA-
incident in a petition for review on certiorari, docketed G.R. No. G.R. SP No. 22505, per this Court’s resolution of 07 August 1990.
91173, to this Court. The petition, however, was denied for its On 31 October 1990, the Court of Appeals promulgated its decision
failure to comply with SC Circular No. 1-88; in any event, the Court sustaining the diplomatic immunity of Scalzo and ordering the
added, Scalzo had failed to show that the appellate court was in dismissal of the complaint against him. Minucher filed a petition
error in its questioned judgment. for review with this Court, docketed G.R. No. 97765 and entitled
"Khosrow Minucher vs. the Honorable Court of Appeals, et. al."
Meanwhile, at the court a quo, an order, dated 09 February 1990, (cited in 214 SCRA 242), appealing the judgment of the Court of
was issued (a) declaring Scalzo in default for his failure to file a Appeals. In a decision, dated 24 September 1992, penned by
responsive pleading (answer) and (b) setting the case for the Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed
44
the decision of the appellate court and remanded the case to the jurisdiction of the "Receiving State" pursuant to the terms of the
lower court for trial. The remand was ordered on the theses (a) Vienna Convention.
that the Court of Appeals erred in granting the motion to dismiss
of Scalzo for lack of jurisdiction over his person without even Hence, this recourse by Minucher. The instant petition for review
considering the issue of the authenticity of Diplomatic Note No. raises a two-fold issue: (1) whether or not the doctrine of
414 and (b) that the complaint contained sufficient allegations to conclusiveness of judgment, following the decision rendered by
the effect that Scalzo committed the imputed acts in his personal this Court in G.R. No. 97765, should have precluded the Court of
capacity and outside the scope of his official duties and, absent any Appeals from resolving the appeal to it in an entirely different
evidence to the contrary, the issue on Scalzo’s diplomatic manner, and (2) whether or not Arthur Scalzo is indeed entitled to
immunity could not be taken up. diplomatic immunity.
The Manila RTC thus continued with its hearings on the case. On The doctrine of conclusiveness of judgment, or its kindred rule of
17 November 1995, the trial court reached a decision; it adjudged: res judicata, would require 1) the finality of the prior judgment, 2)
a valid jurisdiction over the subject matter and the parties on the
"WHEREFORE, and in view of all the foregoing considerations, part of the court that renders it, 3) a judgment on the merits, and
judgment is hereby rendered for the plaintiff, who successfully 4) an identity of the parties, subject matter and causes of
established his claim by sufficient evidence, against the defendant action.3 Even while one of the issues submitted in G.R. No. 97765 -
in the manner following: "whether or not public respondent Court of Appeals erred in
ruling that private respondent Scalzo is a diplomat immune from
"`Adjudging defendant liable to plaintiff in actual and civil suit conformably with the Vienna Convention on Diplomatic
compensatory damages of P520,000.00; moral damages in the sum Relations" - is also a pivotal question raised in the instant petition,
of P10 million; exemplary damages in the sum of P100,000.00; the ruling in G.R. No. 97765, however, has not resolved that point
attorney's fees in the sum of P200,000.00 plus costs. with finality. Indeed, the Court there has made this observation -
`The Clerk of the Regional Trial Court, Manila, is ordered to take "It may be mentioned in this regard that private respondent
note of the lien of the Court on this judgment to answer for the himself, in his Pre-trial Brief filed on 13 June 1990, unequivocally
unpaid docket fees considering that the plaintiff in this case states that he would present documentary evidence consisting of
instituted this action as a pauper litigant.’"2 DEA records on his investigation and surveillance of plaintiff and
on his position and duties as DEA special agent in Manila. Having
While the trial court gave credence to the claim of Scalzo and the thus reserved his right to present evidence in support of his
evidence presented by him that he was a diplomatic agent entitled position, which is the basis for the alleged diplomatic immunity,
to immunity as such, it ruled that he, nevertheless, should be held the barren self-serving claim in the belated motion to dismiss
accountable for the acts complained of committed outside his cannot be relied upon for a reasonable, intelligent and fair
official duties. On appeal, the Court of Appeals reversed the resolution of the issue of diplomatic immunity." 4
decision of the trial court and sustained the defense of Scalzo that
he was sufficiently clothed with diplomatic immunity during his Scalzo contends that the Vienna Convention on Diplomatic
term of duty and thereby immune from the criminal and civil Relations, to which the Philippines is a signatory, grants him
absolute immunity from suit, describing his functions as an agent
45
of the United States Drugs Enforcement Agency as "conducting member of the diplomatic staff of the United States diplomatic
surveillance operations on suspected drug dealers in the mission from his arrival in the Philippines on 14 October 1985
Philippines believed to be the source of prohibited drugs being until his departure on 10 August 1988; (2) that the United States
shipped to the U.S., (and) having ascertained the target, (he then) Government was firm from the very beginning in asserting the
would inform the Philippine narcotic agents (to) make the actual diplomatic immunity of Scalzo with respect to the case pursuant to
arrest." Scalzo has submitted to the trial court a number of the provisions of the Vienna Convention on Diplomatic Relations;
documents - and (3) that the United States Embassy repeatedly urged the
Department of Foreign Affairs to take appropriate action to inform
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990; the trial court of Scalzo’s diplomatic immunity. The other
documentary exhibits were presented to indicate that: (1) the
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward Philippine government itself, through its Executive Department,
dated 11 June 1990; recognizing and respecting the diplomatic status of Scalzo,
formally advised the "Judicial Department" of his diplomatic status
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October and his entitlement to all diplomatic privileges and immunities
1991; under the Vienna Convention; and (2) the Department of Foreign
Affairs itself authenticated Diplomatic Note No. 414. Scalzo
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November additionally presented Exhibits "9" to "13" consisting of his
1992; and reports of investigation on the surveillance and subsequent arrest
of Minucher, the certification of the Drug Enforcement
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October Administration of the United States Department of Justice that
1988. Scalzo was a special agent assigned to the Philippines at all times
relevant to the complaint, and the special power of attorney
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, executed by him in favor of his previous counsel 6 to show (a) that
Legal Adviser, Department of Foreign Affairs, dated 27 June the United States Embassy, affirmed by its Vice Consul,
1990 forwarding Embassy Note No. 414 to the Clerk of acknowledged Scalzo to be a member of the diplomatic staff of the
Court of RTC Manila, Branch 19 (the trial court); United States diplomatic mission from his arrival in the
Philippines on 14 October 1985 until his departure on 10 August
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st 1988, (b) that, on May 1986, with the cooperation of the Philippine
Indorsement (Exh. '3'); and law enforcement officials and in the exercise of his functions as
member of the mission, he investigated Minucher for alleged
8. Exh. '8' - Letter dated 18 November 1992 from the Office trafficking in a prohibited drug, and (c) that the Philippine
of the Protocol, Department of Foreign Affairs, through Department of Foreign Affairs itself recognized that Scalzo during
Asst. Sec. Emmanuel Fernandez, addressed to the Chief his tour of duty in the Philippines (14 October 1985 up to 10
Justice of this Court.5 August 1988) was listed as being an Assistant Attaché of the
United States diplomatic mission and accredited with diplomatic
The documents, according to Scalzo, would show that: (1) the status by the Government of the Philippines. In his Exhibit 12,
United States Embassy accordingly advised the Executive Scalzo described the functions of the overseas office of the United
Department of the Philippine Government that Scalzo was a States Drugs Enforcement Agency, i.e., (1) to provide criminal
46
investigative expertise and assistance to foreign law enforcement members of the administrative, technical and service staff of the
agencies on narcotic and drug control programs upon the request mission, are accorded diplomatic rank. Even while the Vienna
of the host country, 2) to establish and maintain liaison with the Convention on Diplomatic Relations provides for immunity to the
host country and counterpart foreign law enforcement officials, members of diplomatic missions, it does so, nevertheless, with an
and 3) to conduct complex criminal investigations involving understanding that the same be restrictively applied. Only
international criminal conspiracies which affect the interests of "diplomatic agents," under the terms of the Convention, are vested
the United States. with blanket diplomatic immunity from civil and criminal suits.
The Convention defines "diplomatic agents" as the heads of
The Vienna Convention on Diplomatic Relations was a codification missions or members of the diplomatic staff, thus impliedly
of centuries-old customary law and, by the time of its ratification withholding the same privileges from all others. It might bear
on 18 April 1961, its rules of law had long become stable. Among stressing that even consuls, who represent their respective states
the city states of ancient Greece, among the peoples of the in concerns of commerce and navigation and perform certain
Mediterranean before the establishment of the Roman Empire, administrative and notarial duties, such as the issuance of
and among the states of India, the person of the herald in time of passports and visas, authentication of documents, and
war and the person of the diplomatic envoy in time of peace were administration of oaths, do not ordinarily enjoy the traditional
universally held sacrosanct.7 By the end of the 16th century, when diplomatic immunities and privileges accorded diplomats, mainly
the earliest treatises on diplomatic law were published, the for the reason that they are not charged with the duty of
inviolability of ambassadors was firmly established as a rule of representing their states in political matters. Indeed, the main
customary international law.8 Traditionally, the exercise of yardstick in ascertaining whether a person is a diplomat entitled
diplomatic intercourse among states was undertaken by the head to immunity is the determination of whether or not he performs
of state himself, as being the preeminent embodiment of the state duties of diplomatic nature.
he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state Scalzo asserted, particularly in his Exhibits "9" to "13," that he was
would wish to have a more prominent diplomatic presence in the an Assistant Attaché of the United States diplomatic mission and
receiving state, it would then send to the latter a diplomatic was accredited as such by the Philippine Government. An attaché
mission. Conformably with the Vienna Convention, the functions of belongs to a category of officers in the diplomatic establishment
the diplomatic mission involve, by and large, the representation of who may be in charge of its cultural, press, administrative or
the interests of the sending state and promoting friendly relations financial affairs. There could also be a class of attaches belonging
with the receiving state.9 to certain ministries or departments of the government, other than
the foreign ministry or department, who are detailed by their
The Convention lists the classes of heads of diplomatic missions to respective ministries or departments with the embassies such as
include (a) ambassadors or nuncios accredited to the heads of the military, naval, air, commercial, agricultural, labor, science, and
state,10 (b) envoys,11 ministers or internuncios accredited to the customs attaches, or the like. Attaches assist a chief of mission in
heads of states; and (c) charges d' affairs 12 accredited to the his duties and are administratively under him, but their main
ministers of foreign affairs.13 Comprising the "staff of the function is to observe, analyze and interpret trends and
(diplomatic) mission" are the diplomatic staff, the administrative developments in their respective fields in the host country and
staff and the technical and service staff. Only the heads of submit reports to their own ministries or departments in the
missions, as well as members of the diplomatic staff, excluding the home government.14 These officials are not generally regarded as
47
members of the diplomatic mission, nor are they normally sustained the trial court's denial of the motion to dismiss. Verily, it
designated as having diplomatic rank. should have been the most proper and appropriate recourse. It
should not have been overwhelmed by the self-serving Diplomatic
In an attempt to prove his diplomatic status, Scalzo presented Note whose belated issuance is even suspect and whose
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem authenticity has not yet been proved. The undue haste with which
motam, respectively, on 29 May 1990, 25 October 1991 and 17 respondent Court yielded to the private respondent's claim is
November 1992. The presentation did nothing much to alleviate arbitrary."
the Court's initial reservations in G.R. No. 97765, viz:
A significant document would appear to be Exhibit No. 08, dated
"While the trial court denied the motion to dismiss, the public 08 November 1992, issued by the Office of Protocol of the
respondent gravely abused its discretion in dismissing Civil Case Department of Foreign Affairs and signed by Emmanuel C.
No. 88-45691 on the basis of an erroneous assumption that simply Fernandez, Assistant Secretary, certifying that "the records of the
because of the diplomatic note, the private respondent is clothed Department (would) show that Mr. Arthur W. Scalzo, Jr., during his
with diplomatic immunity, thereby divesting the trial court of term of office in the Philippines (from 14 October 1985 up to 10
jurisdiction over his person. August 1988) was listed as an Assistant Attaché of the United
States diplomatic mission and was, therefore, accredited
"x x x x x x x x x diplomatic status by the Government of the Philippines." No
certified true copy of such "records," the supposed bases for the
"And now, to the core issue - the alleged diplomatic immunity of belated issuance, was presented in evidence.
the private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround Concededly, vesting a person with diplomatic immunity is a
such claim, in view of the fact that it took private respondent one prerogative of the executive branch of the government. In World
(1) year, eight (8) months and seventeen (17) days from the time Health Organization vs. Aquino,15 the Court has recognized that, in
his counsel filed on 12 September 1988 a Special Appearance and such matters, the hands of the courts are virtually tied. Amidst
Motion asking for a first extension of time to file the Answer apprehensions of indiscriminate and incautious grant of immunity,
because the Departments of State and Justice of the United States designed to gain exemption from the jurisdiction of courts, it
of America were studying the case for the purpose of determining should behoove the Philippine government, specifically its
his defenses, before he could secure the Diplomatic Note from the Department of Foreign Affairs, to be most circumspect, that should
US Embassy in Manila, and even granting for the sake of argument particularly be no less than compelling, in its post litem motam
that such note is authentic, the complaint for damages filed by issuances. It might be recalled that the privilege is not an
petitioner cannot be peremptorily dismissed. immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity
"x x x x x x x x x from the exercise of territorial jurisdiction. 16 The government of
the United States itself, which Scalzo claims to be acting for, has
"There is of course the claim of private respondent that the acts formulated its standards for recognition of a diplomatic agent. The
imputed to him were done in his official capacity. Nothing State Department policy is to only concede diplomatic status to a
supports this self-serving claim other than the so-called person who possesses an acknowledged diplomatic title and
Diplomatic Note. x x x. The public respondent then should have "performs duties of diplomatic nature." 17 Supplementary criteria
48
for accreditation are the possession of a valid diplomatic passport against an official would require the state itself to perform an
or, from States which do not issue such passports, a diplomatic affirmative act to satisfy the award, such as the appropriation of
note formally representing the intention to assign the person to the amount needed to pay the damages decreed against him, the
diplomatic duties, the holding of a non-immigrant visa, being over suit must be regarded as being against the state itself, although it
twenty-one years of age, and performing diplomatic functions on has not been formally impleaded.23
an essentially full-time basis. 18 Diplomatic missions are requested
to provide the most accurate and descriptive job title to that which In United States of America vs. Guinto, 24 involving officers of the
currently applies to the duties performed. The Office of the United States Air Force and special officers of the Air Force Office
Protocol would then assign each individual to the appropriate of Special Investigators charged with the duty of preventing the
functional category.19 distribution, possession and use of prohibited drugs, this Court has
ruled -
But while the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed, he worked "While the doctrine (of state immunity) appears to prohibit only
for the United States Drug Enforcement Agency and was tasked to suits against the state without its consent, it is also applicable to
conduct surveillance of suspected drug activities within the complaints filed against officials of the state for acts allegedly
country on the dates pertinent to this case. If it should be performed by them in the discharge of their duties. x x x. It cannot
ascertained that Arthur Scalzo was acting well within his assigned for a moment be imagined that they were acting in their private or
functions when he committed the acts alleged in the complaint, the unofficial capacity when they apprehended and later testified
present controversy could then be resolved under the related against the complainant. It follows that for discharging their duties
doctrine of State Immunity from Suit. as agents of the United States, they cannot be directly impleaded
for acts imputable to their principal, which has not given its
The precept that a State cannot be sued in the courts of a consent to be sued. x x x As they have acted on behalf of the
foreign state is a long-standing rule of customary international government, and within the scope of their authority, it is that
law then closely identified with the personal immunity of a foreign government, and not the petitioners personally, [who were]
sovereign from suit20 and, with the emergence of democratic responsible for their acts."25
states, made to attach not just to the person of the head of state, or
his representative, but also distinctly to the state itself in its This immunity principle, however, has its limitations. Thus, Shauf
sovereign capacity.21 If the acts giving rise to a suit are those of a vs. Court of Appeals26 elaborates:
foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official "It is a different matter where the public official is made to account
capacity, the complaint could be barred by the immunity of the in his capacity as such for acts contrary to law and injurious to the
foreign sovereign from suit without its consent. Suing a rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
representative of a state is believed to be, in effect, suing the state Director of the Bureau of Telecommunications, et al., vs. Aligaen, et
itself. The proscription is not accorded for the benefit of an al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts
individual but for the State, in whose service he is, under the by its officers, unauthorized acts of government officials or officers
maxim - par in parem, non habet imperium - that all states are are not acts of the State, and an action against the officials or
sovereign equals and cannot assert jurisdiction over one officers by one whose rights have been invaded or violated by such
another.22 The implication, in broad terms, is that if the judgment acts, for the protection of his rights, is not a suit against the State
49
within the rule of immunity of the State from suit. In the same activities of the United States Drug Enforcement Agency, however,
tenor, it has been said that an action at law or suit in equity against can be gleaned from the facts heretofore elsewhere mentioned.
a State officer or the director of a State department on the ground The official exchanges of communication between agencies of the
that, while claiming to act for the State, he violates or invades the government of the two countries, certifications from officials of
personal and property rights of the plaintiff, under an both the Philippine Department of Foreign Affairs and the United
unconstitutional act or under an assumption of authority which he States Embassy, as well as the participation of members of the
does not have, is not a suit against the State within the Philippine Narcotics Command in the "buy-bust operation"
constitutional provision that the State may not be sued without its conducted at the residence of Minucher at the behest of Scalzo,
consent. The rationale for this ruling is that the doctrine of state may be inadequate to support the "diplomatic status" of the latter
immunity cannot be used as an instrument for perpetrating an but they give enough indication that the Philippine government
injustice. has given its imprimatur, if not consent, to the activities within
Philippine territory of agent Scalzo of the United States Drug
"x x x x x x x x x Enforcement Agency. The job description of Scalzo has tasked him
to conduct surveillance on suspected drug suppliers and, after
"(T)he doctrine of immunity from suit will not apply and may not having ascertained the target, to inform local law enforcers who
be invoked where the public official is being sued in his private would then be expected to make the arrest. In conducting
and personal capacity as an ordinary citizen. The cloak of surveillance activities on Minucher, later acting as the poseur-
protection afforded the officers and agents of the government is buyer during the buy-bust operation, and then becoming a
removed the moment they are sued in their individual capacity. principal witness in the criminal case against Minucher, Scalzo
This situation usually arises where the public official acts without hardly can be said to have acted beyond the scope of his official
authority or in excess of the powers vested in him. It is a well- function or duties.
settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have All told, this Court is constrained to rule that respondent Arthur
caused by his act done with malice and in bad faith or beyond the Scalzo, an agent of the United States Drug Enforcement Agency
scope of his authority and jurisdiction."27 allowed by the Philippine government to conduct activities in the
country to help contain the problem on the drug traffic, is entitled
A foreign agent, operating within a territory, can be cloaked with to the defense of state immunity from suit.
immunity from suit but only as long as it can be established that he
is acting within the directives of the sending state. The consent of WHEREFORE, on the foregoing premises, the petition is DENIED.
the host state is an indispensable requirement of basic courtesy No costs.
between the two sovereigns. Guinto and Shauf both involve
officers and personnel of the United States, stationed within SO ORDERED.
Philippine territory, under the RP-US Military Bases Agreement.
While evidence is wanting to show any similar agreement between Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna,
the governments of the Philippines and of the United States (for JJ., concur
the latter to send its agents and to conduct surveillance and
related activities of suspected drug dealers in the Philippines), the
consent or imprimatur of the Philippine government to the
50
Republic of the Philippines covered by immunity under the Agreement and that no
SUPREME COURT preliminary investigation was held before the criminal cases were
Manila filed in court.1âwphi1.nêt
FIRST DIVISION The petition is not impressed with merit.
G.R. No. 125865 January 28, 2000 First, courts cannot blindly adhere and take on its face the
communication from the DFA that petitioner is covered by any
JEFFREY LIANG (HUEFENG), petitioner, immunity. The DFA's determination that a certain person is
vs. covered by immunity is only preliminary which has no binding
PEOPLE OF THE PHILIPPINES, respondent. effect in courts. In receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without notice to the
YNARES-SANTIAGO, J.: prosecution, the latter's right to due process was violated. It
should be noted that due process is a right of the accused as much
Petitioner is an economist working with the Asian Development as it is of the prosecution. The needed inquiry in what capacity
Bank (ADB). Sometime in 1994, for allegedly uttering defamatory petitioner was acting at the time of the alleged utterances requires
words against fellow ADB worker Joyce Cabal, he was charged for its resolution evidentiary basis that has yet to be presented at
before the Metropolitan Trial Court (MeTC) of Mandaluyong City the proper time.1 At any rate, it has been ruled that the mere
with two counts of grave oral defamation docketed as Criminal invocation of the immunity clause does not ipso facto result in the
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of dropping of the charges.2
a warrant issued by the MeTC. After fixing petitioner's bail at
P2,400.00 per criminal charge, the MeTC released him to the Second, under Section 45 of the Agreement which provides:
custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Officers and staff of the Bank including for the purpose of
Foreign Affairs (DFA) stating that petitioner is covered by this Article experts and consultants performing missions
immunity from legal process under Section 45 of the Agreement for the Bank shall enjoy the following privileges and
between the ADB and the Philippine Government regarding the immunities:
Headquarters of the ADB (hereinafter Agreement) in the country.
Based on the said protocol communication that petitioner is a.) immunity from legal process with respect to acts
immune from suit, the MeTC judge without notice to the performed by them in their official capacity except
prosecution dismissed the two criminal cases. The latter filed a when the Bank waives the immunity.
motion for reconsideration which was opposed by the DFA. When
its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court (RTC)
of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After
the motion for reconsideration was denied, petitioner elevated the
case to this Court via a petition for review arguing that he is
51
the immunity mentioned therein is not absolute, but subject to the impair the validity of the information or otherwise render it
exception that the acts was done in "official capacity." It is defective.9
therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have been WHEREFORE, the petition is DENIED.
given the chance to rebut the DFA protocol and it must be
accorded the opportunity to present its controverting evidence, SO ORDERED.1âwphi1.nêt
should it so desire.
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
Third, slandering a person could not possibly be covered by the
immunity agreement because our laws do not allow the
commission of a crime, such as defamation, in the name of official
duty.3 The imputation of theft is ultra vires and cannot be part of
official functions. It is well-settled principle of law that a public
official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice or in bad
faith or beyond the scope of his authority or jurisdiction. 4 It
appears that even the government's chief legal counsel, the
Solicitor General, does not support the stand taken by petitioner
and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a

diplomatic agent, assuming petitioner is such, enjoys immunity
from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his
official functions.5 As already mentioned above, the commission of
a crime is not part of official duty.
Finally, on the contention that there was no preliminary

investigation conducted, suffice it to say that preliminary
investigation is not a matter of right in cases cognizable by the
MeTC such as the one at bar. 6 Being purely a statutory right,
preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no
preliminary investigation is required in cases falling within the
jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it
52
On July 26, 2003, President Gloria Macapagal Arroyo received

intelligence reports that some members of the AFP, with high-
powered weapons, had abandoned their designated places of
assignment. Their aim was to destabilize the government. The
President then directed the AFP and the Philippine National Police
(PNP) to track and arrest them.
Republic of the Philippines
SUPREME COURT On July 27, 2003 at around 1:00 a.m., more than 300 heavily
Manila armed junior officers and enlisted men of the AFP – mostly from
the elite units of the Army’s Scout Rangers and the Navy’s Special
EN BANC Warfare Group – entered the premises of the Oakwood Premier
Luxury Apartments on Ayala Avenue, Makati City. They disarmed
G.R. No. 164007 August 10, 2006 the security guards and planted explosive devices around the
building.
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT.
(SG) ANTONIO TRILLANES IV, CPT. GARY ALEJANO, LT. (SG) Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red
JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR armbands emblazoned with the emblem of the "Magdalo" faction
FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND of the Katipunan. 1 The troops then, through broadcast media,
PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL announced their grievances against the administration of
SANGGALANG, Petitioners, President Gloria Macapagal Arroyo, such as the graft and
vs. corruption in the military, the illegal sale of arms and ammunition
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the to the "enemies" of the State, and the bombings in Davao City
Armed Forces of the Philippines, and B. GEN. MARIANO M. intended to acquire more military assistance from the US
SARMIENTO, JR., in his capacity as the Judge Advocate General government. They declared their withdrawal of support from their
of the Judge Advocate General’s Office (JAGO), Respondents. Commander-in-Chief and demanded that she resign as President
of the Republic. They also called for the resignation of her cabinet
DECISION members and the top brass of the AFP and PNP.
SANDOVAL-GUTIERREZ, J.: About noontime of the same day, President Arroyo issued

Proclamation No. 427 declaring a state of rebellion, followed by
For our resolution is the Petition for Prohibition (with prayer for a General Order No. 4 directing the AFP and PNP to take all
temporary restraining order) filed by the above-named members necessary measures to suppress the rebellion then taking place in
of the Armed Forces of the Philippines (AFP), herein petitioners, Makati City. She then called the soldiers to surrender their
against the AFP Chief of Staff and the Judge Advocate General, weapons at five o’clock in the afternoon of that same day.
respondents.
In order to avoid a bloody confrontation, the government sent
The facts are: negotiators to dialogue with the soldiers. The aim was to persuade
them to peacefully return to the fold of the law. After several hours
53
of negotiation, the government panel succeeded in convincing 408, 4 as amended, against the same military personnel.
them to lay down their arms and defuse the explosives placed Specifically, the charges are: (a) violation of Article 63 for
around the premises of the Oakwood Apartments. Eventually, they disrespect toward the President, the Secretary of National
returned to their barracks. Defense, etc., (b) violation of Article 64 for disrespect toward a
superior officer, (c) violation of Article 67 for mutiny or sedition,
A total of 321 soldiers, including petitioners herein, surrendered (d) violation of Article 96 for conduct unbecoming an officer and a
to the authorities. gentleman, and (e) violation of Article 97 for conduct prejudicial to
good order and military discipline.
The National Bureau of Investigation (NBI) investigated the
incident and recommended that the military personnel involved Of the original 321 accused in Criminal Case No. 03-2784, only 243
be charged with coup d’etat defined and penalized under Article (including petitioners herein) filed with the RTC, Branch 148 an
134-A of the Revised Penal Code, as amended. On July 31, 2003, Omnibus Motion praying that the said trial court assume
the Chief State Prosecutor of the Department of Justice (DOJ) jurisdiction over all the charges filed with the military tribunal.
recommended the filing of the corresponding Information against They invoked Republic Act (R.A.) No. 7055. 5
them.
On September 15, 2003, petitioners filed with the Judge Advocate
Meanwhile, on August 2, 2003, pursuant to Article 70 of the General’s Office (JAGO) a motion praying for the suspension of its
Articles of War, respondent General Narciso Abaya, then AFP Chief proceedings until after the RTC shall have resolved their motion to
of Staff, ordered the arrest and detention of the soldiers involved assume jurisdiction.
in the Oakwood incident and directed the AFP to conduct its own
separate investigation. On October 29, 2003, the Pre-Trial Investigation Panel submitted
its Initial Report to the AFP Chief of Staff recommending that the
On August 5, 2003, the DOJ filed with the Regional Trial Court military personnel involved in the Oakwood incident be charged
(RTC), Makati City an Information for coup d’etat 2 against those before a general court martial with violations of Articles 63, 64, 67,
soldiers, docketed as Criminal Case No. 03-2784 and eventually 96, and 97 of the Articles of War.
raffled off to Branch 61, presided by Judge Romeo F.
Barza. 3 Subsequently, this case was consolidated with Criminal Meanwhile, on November 11, 2003, the DOJ, after conducting a
Case No. 03-2678, involving the other accused, pending before reinvestigation, found probable cause against only 31 (petitioners
Branch 148 of the RTC, Makati City, presided by Judge Oscar B. included) of the 321 accused in Criminal Case No. 03-2784.
Pimentel. Accordingly, the prosecution filed with the RTC an Amended
Information. 6
On August 13, 2003, the RTC directed the DOJ to conduct a
reinvestigation of Criminal Case No. 03-2784. In an Order dated November 14, 2003, the RTC admitted the
Amended Information and dropped the charge of coup
On the same date, respondent Chief of Staff issued Letter Order No. d’etat against the 290 accused.
625 creating a Pre-Trial Investigation Panel tasked to determine
the propriety of filing with the military tribunal charges for Subsequently, or on December 12, 2003, the Pre-Trial
violations of the Articles of War under Commonwealth Act No. Investigation Panel submitted its Final Pre-Trial Investigation
54
Report 7 to the JAGO, recommending that, following the "doctrine 70, 72 to 92, and 95 to 97. The law provides that violations of
of absorption," those charged with coup d’etat before the these Articles are properly cognizable by the court martial. As the
RTCshould not be charged before the military tribunal for charge against petitioners is violation of Article 96 which, under
violation of the Articles of War. R.A. No. 7055 is a service-connected offense, then it falls under the
jurisdiction of the court martial.
For its part, the RTC, on February 11, 2004, issued an
Order 8 stating that "all charges before the court martial against Subsequently, petitioners filed with this Court a Supplemental
the accused…are hereby declared not service-connected, but Petition raising the additional issue that the offense charged
rather absorbed and in furtherance of the alleged crime of coup before the General Court Martial has prescribed. Petitioners
d’etat." The trial court then proceeded to hear petitioners’ alleged therein that during the pendency of their original petition,
applications for bail. respondents proceeded with the Pre-Trial Investigation for
purposes of charging them with violation of Article 96 (conduct
In the meantime, Colonel Julius A. Magno, in his capacity as officer- unbecoming an officer and a gentleman) of the Articles of War;
in-charge of the JAGO, reviewed the findings of the Pre-Trial that the Pre-Trial Investigation Panel then referred the case to the
Investigation Panel. He recommended that 29 of the officers General Court Martial; that "almost two years since the Oakwood
involved in the Oakwood incident, including petitioners, be incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes
prosecuted before a general court martial for violation of Article was arraigned, and this was done under questionable
96 (conduct unbecoming an officer and a gentleman) of the circumstances;" 10 that in the hearing of July 26, 2005, herein
Articles of War. petitioners moved for the dismissal of the case on the ground that
they were not arraigned within the prescribed period of two (2)
On June 17, 2004, Colonel Magno’s recommendation was approved years from the date of the commission of the alleged offense, in
by the AFP top brass. The AFP Judge Advocate General then violation of Article 38 of the Articles of War; 11 that "the offense
directed petitioners to submit their answer to the charge. Instead charged prescribed on July 25, 2005;" 12 that the General Court
of complying, they filed with this Court the instant Petition for Martial ruled, however, that "the prescriptive period shall end only
Prohibition praying that respondents be ordered to desist from at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July
charging them with violation of Article 96 of the Articles of War in 26, 2005 was approaching and it was becoming apparent that the
relation to the Oakwood incident. 9 accused could not be arraigned, the prosecution suddenly changed
its position and asserted that 23 of the accused have already been
Petitioners maintain that since the RTC has made a determination arraigned;" 14 and that petitioners moved for a reconsideration but
in its Order of February 11, 2004 that the offense for violation of it was denied by the general court martial in its Order dated
Article 96 (conduct unbecoming an officer and a gentleman) of the September 14, 2005. 15
Articles of War is not service-connected, but is absorbed in the
crime of coup d’etat, the military tribunal cannot compel them to In his Comment, the Solicitor General prays that the Supplemental
submit to its jurisdiction. Petition be denied for lack of merit. He alleges that "contrary to
petitioners’ pretensions, all the accused were duly arraigned on
The Solicitor General, representing the respondents, counters that July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing
R.A. No. 7055 specifies which offenses covered by the Articles of on July 13, 2005, all the 29 accused were present" and, "(o)n that
War areservice-connected. These are violations of Articles 54 to day, Military Prosecutor Captain Karen Ong Jags read the Charges
55
and Specifications from the Charge Sheet in open court (pp. 64, Philippines may, in the interest of justice, order or direct at any
TSN, July 13, 2005)." 17 time before arraignment that any such crimes or offenses be tried
by the proper civil courts.
The sole question for our resolution is whether the petitioners are
entitled to the writ of prohibition. As used in this Section, service-connected crimes or offenses shall
be limited to those defined in Articles 54 to 70, Articles 72 to 92,
There is no dispute that petitioners, being officers of the AFP, are and Articles 95 to 97 of Commonwealth Act No. 408, as amended.
subject to military law. Pursuant to Article 1 (a) of Commonwealth
Act No. 408, as amended, otherwise known as the Articles of War, In imposing the penalty for such crimes or offenses, the court-
the term "officer" is "construed to refer to a commissioned officer." martial may take into consideration the penalty prescribed
Article 2 provides: therefor in the Revised Penal Code, other special laws, or local
government ordinances.
Art. 2. Persons Subject to Military Law. – The following persons are
subject to these articles and shall be understood as included in the Section 1 of R.A. No. 7055, quoted above, is clear and
term "any person subject to military law" or "persons subject to unambiguous. First, it lays down the general rule that members of
military law," whenever used in these articles: the AFP and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who
(a) All officers and soldiers in the active service of the Armed commit crimes or offenses penalized under the Revised Penal
Forces of the Philippines or of the Philippine Constabulary, all Code (like coup d’etat), other special penal laws, or local
members of the reserve force, from the dates of their call to active ordinances shall be tried by the proper civil court. Next, it provides
duty and while on such active duty; all trainees undergoing the exception to the general rule, i.e., where the civil court, before
military instructions; and all other persons lawfully called, drafted, arraignment, has determined the offense to be service-connected,
or ordered into, or to duty or for training in the said service, from then the offending soldier shall be tried by a court martial. Lastly,
the dates they are required by the terms of the call, draft, or order the law states an exception to the exception, i.e., where the
to obey the same. President of the Philippines, in the interest of justice, directs
before arraignment that any such crimes or offenses be tried by
Upon the other hand, Section 1 of R.A. No. 7055 reads: the proper civil court.
SEC. 1. Members of the Armed Forces of the Philippines and other The second paragraph of the same provision further identifies the
persons subject to military law, including members of the Citizens "service-connected crimes or offenses" as "limited to those
Armed Forces Geographical Units, who commit crimes or offenses defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to
penalized under the Revised Penal Code, other special penal laws, 97" of the Articles of War. Violations of these specified Articles
or local government ordinances, regardless of whether or not are triable by court martial. This delineates the jurisdiction
civilians are co-accused, victims, or offended parties, which may be between the civil courts and the court martial over crimes or
natural or juridical persons, shall be tried by the proper civil court, offenses committed by military personnel.
except when the offense, as determined before arraignment by the
civil court, is service-connected, in which case, the offense shall be Such delineation of jurisdiction by R.A. No. 7055 is necessary to
tried by court-martial, Provided, That the President of the preserve the peculiar nature of military justice system over
56
military personnel charged with service-connected offenses. The ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any
military justice system is disciplinary in nature, aimed at achieving officer, member of the Nurse Corps, cadet, flying cadet, or
the highest form of discipline in order to ensure the highest degree probationary second lieutenant, who is convicted of conduct
of military efficiency. 18 Military law is established not merely to unbecoming an officer and a gentleman shall be dismissed from
enforce discipline in times of war, but also to preserve the the service. (Underscoring ours)
tranquility and security of the State in time of peace; for there is
nothing more dangerous to the public peace and safety than a We hold that the offense for violation of Article 96 of the Articles
licentious and undisciplined military body. 19 The administration of War is service-connected. This is expressly provided in Section
of military justice has been universally practiced. Since time 1 (second paragraph) of R.A. No. 7055. It bears stressing that the
immemorial, all the armies in almost all countries of the world charge against the petitioners concerns the alleged violation of
look upon the power of military law and its administration as the their solemn oath as officers to defend the Constitution and the
most effective means of enforcing discipline. For this reason, the duly-constituted authorities.Such violation allegedly caused
court martial has become invariably an indispensable part of any dishonor and disrespect to the military profession. In short,
organized armed forces, it being the most potent agency in the charge has a bearing on
enforcing discipline both in peace and in war. 20 their professional conduct or behavior as military officers.
Equally indicative of the "service-connected" nature of the offense
Here, petitioners are charged for violation of Article 96 (conduct is the penalty prescribed for the same – dismissal from the
unbecoming an officer and a gentleman) of the Articles of War service – imposable only by the military court.Such penalty
before the court martial, thus: is purely disciplinary in character, evidently intended to cleanse
the military profession of misfits and to preserve the stringent
All persons subject to military law, did on or about 27 July 2003 at standard of military discipline.
Oakwood Hotel, Makati City, Metro Manila, willfully, unlawfully
and feloniously violate their solemn oath as officers to defend Obviously, there is no merit in petitioners’ argument that they can
the Constitution, the law and the duly-constituted authorities no longer be charged before the court martial for violation of
and abused their constitutional duty to protect the people and Article 96 of the Articles of War because the same has been
the State by, among others, attempting to oust the incumbent declared by the RTC in its Order of February 11, 2004 as "not
duly-elected and legitimate President by force and violence, service-connected, but rather absorbed and in furtherance of the
seriously disturbing the peace and tranquility of the people and alleged crime of coup d’etat," hence, triable by said court (RTC).
the nation they are sworn to protect, thereby causing dishonor The RTC, in making such declaration, practically amended the law
and disrespect to the military profession, conduct which expressly vests in the court martial the jurisdiction over
unbecoming an officer and a gentleman, in violation of AW 96 "service-connected crimes or offenses." What the law has
of the Articles of War. conferred the court should not take away. It is only the
Constitution or the law that bestows jurisdiction on the court,
CONTRARY TO LAW. (Underscoring ours) tribunal, body or officer over the subject matter or nature of an
action which can do so. 22 And it is only through a constitutional
Article 96 of the Articles of War 21 provides: amendment or legislative enactment that such act can be done.
The first and fundamental duty of the courts is merely to apply the
law "as they find it, not as they like it to be." 23 Evidently, such
57
declaration by the RTC constitutes grave abuse of discretion Art. 63. Disrespect Toward the President, Vice-President,
tantamount to lack or excess of jurisdiction and is, therefore, void.
Congress of the Philippines, or Secretary of National
24
In Navales v. Abaya., this Court, through Mr. Justice Romeo J.
Callejo, Sr., held: Defense.
We agree with the respondents that the sweeping declaration Art. 64. Disrespect Toward Superior Officer.
made by the RTC (Branch 148) in the dispositive portion of its
Order dated February 11, 2004 that all charges before the court- Art. 65. Assaulting or Willfully Disobeying Superior Officer.
martial against the accused were not service-connected, but
absorbed and in furtherance of the crime of coup d’etat, cannot be Art. 66. Insubordinate Conduct Toward Non-Commissioned
given effect. x x x, such declaration was made without or in excess Officer.
of jurisdiction; hence, a nullity.
Art. 67. Mutiny or Sedition.
The second paragraph of the above provision (referring to Section
1 of R.A. No. 7055) explicitly specifies what are considered Art. 68. Failure to Suppress Mutiny or Sedition.
"service-connected crimes or offenses" under Commonwealth Act
No. 408, as amended, also known as the Articles of War, to wit: Art. 69. Quarrels; Frays; Disorders.
Articles 54 to 70: Art. 70. Arrest or Confinement.
Art. 54. Fraudulent Enlistment. Articles 72 to 92:
Art. 55. Officer Making Unlawful Enlistment. Art. 72. Refusal to Receive and Keep Prisoners.
Art. 56. False Muster. Art. 73. Report of Prisoners Received.
Art. 57. False Returns. Art. 74. Releasing Prisoner Without Authority.
Art. 58. Certain Acts to Constitute Desertion. Art. 75. Delivery of Offenders to Civil Authorities.
Art. 59. Desertion. Art. 76. Misbehavior Before the Enemy.
Art. 60. Advising or Aiding Another to Desert. Art. 77. Subordinates Compelling Commander to Surrender.
Art. 61. Entertaining a Deserter. Art. 78. Improper Use of Countersign.
Art. 62. Absence Without Leave. Art. 79. Forcing a Safeguard.
58
Art. 80. Captured Property to be Secured for Public Service. Art. 97. General Article.
Art. 81. Dealing in Captured or Abandoned Property. Further, Section 1 of Rep. Act No. 7055 vests on the military courts
the jurisdiction over the foregoing offenses. x x x.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
It is clear from the foregoing that Rep. Act No. 7055 did not divest
Art. 83. Spies. the military courts of jurisdiction to try cases involving violations
of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the
Art. 84. Military Property.–Willful or Negligent Loss, Damage Articles of War as these are considered "service-connected crimes
or offenses." In fact, it mandates that these shall be tried by the
or wrongful Disposition. court-martial.
Art. 85. Waste or Unlawful Disposition of Military Property Moreover, the observation made by Mr. Justice Antonio T. Carpio
during the deliberation of this case is worth quoting, thus:
Issued to Soldiers.
The trial court aggravated its error when it justified its ruling by
Art. 86. Drunk on Duty. holding that the charge of Conduct Unbecoming an Officer and a
Gentleman is ‘absorbed and in furtherance to the alleged crime of
Art. 87. Misbehavior of Sentinel. coup d’etat.’ Firstly, the doctrine of ‘absorption of crimes’ is
peculiar to criminal law and generally applies to crimes punished
Art. 88. Personal Interest in Sale of Provisions. by the same statute, 25 unlike here where different statutes are
involved. Secondly, the doctrine applies only if the trial court has
Art. 88-A. Unlawful Influencing Action of Court. jurisdiction over both offenses. Here, Section 1 of R.A. 7055
deprives civil courts of jurisdiction over service-connected
Art. 89. Intimidation of Persons Bringing Provisions. offenses, including Article 96 of the Articles of War. Thus, the
doctrine of absorption of crimes is not applicable to this case.
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184
Art. 91. Provoking Speeches or Gestures. [1975]), applicable only to military personnel because the military
constitutes an armed organization requiring a system of discipline
Art. 92. Dueling. separate from that of civilians (see Orloff v. Willoughby, 345 U.S.
83 [1953]). Military personnel carry high-powered arms and other
Articles 95 to 97: lethal weapons not allowed to civilians. History, experience, and
the nature of a military organization dictate that military
Art. 95. Frauds Against the Government. personnel must be subjected to a separate disciplinary system not
applicable to unarmed civilians or unarmed government
Art. 96. Conduct Unbecoming an Officer and Gentleman. personnel.
59
A civilian government employee reassigned to another place by his to (a) who among the petitioners were actually arraigned, and (b)
superior may question his reassignment by asking a temporary the dates of their arraignment. These are matters involving
restraining order or injunction from a civil court. However, a questions of fact, not within our power of review, as we are not a
soldier cannot go to a civil court and ask for a restraining or trier of facts. In a petition for prohibition, such as the one at bar,
injunction if his military commander reassigns him to another only legal issues affecting the jurisdiction of the tribunal, board or
area of military operations. If this is allowed, military discipline officer involved may be resolved on the basis of the undisputed
will collapse. facts. 26
xxx Clearly, the instant petition for prohibition must fail. The office of
prohibition is to prevent the unlawful and oppressive exercise of
This Court has recognized that courts-martial are authority and is directed against proceedings that are done
instrumentalities of the Executive to enable the President, as without or in excess of jurisdiction, or with grave abuse of
Commander-in-Chief, to effectively command, control, and discretion, there being no appeal or other plain, speedy, and
discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil. 875 adequate remedy in the ordinary course of law. 27 Stated
[1946], citing Winthrop’s Military Law and Precedents, 2nd differently, prohibition is the remedy to prevent inferior courts,
edition, p. 49). In short, courts-martial form part of the corporations, boards, or persons from usurping or exercising a
disciplinary system that ensures the President’s control, and thus jurisdiction or power with which they have not been vested by
civilian supremacy, over the military. At the apex of this law. 28
disciplinary system is the President who exercises review powers
over decisions of courts-martial (citing Article 50 of the Articles of In fine, this Court holds that herein respondents have the authority
War; quoted provisions omitted). in convening a court martial and in charging petitioners with
violation of Article 96 of the Articles of War.
xxx
WHEREFORE, the instant petition for prohibition is DISMISSED.
While the Court had intervened before in courts-martial or similar
proceedings, it did so sparingly and only to release a military SO ORDERED.
personnel illegally detained (Ognir v. Director of Prisons, 80 Phil.
401 [1948] or to correct objectionable procedures (Yamashita v. ANGELINA SANDOVAL-GUTIERREZ
Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-
martial proceedings on the ground that the offense charged ‘is Associate Justice
absorbed and in furtherance of’ another criminal charge pending
with the civil courts. The Court may now do so only if the offense WE CONCUR:
charged is not one of the service-connected offenses specified in
Section 1 of RA 7055. Such is not the situation in the present case. ARTEMIO V. PANGANIBAN
With respect to the issue of prescription raised by petitioners in Chief Justice

their Supplemental Petition, suffice it to say that we cannot REYNATO S. PUNO LEONARDO A. QUISUMBING
entertain the same. The contending parties are at loggerheads as Associate Justice Associate Justice
60
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ ENATO C. CORONA

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

ADOLFO S. AZCUNA DANTE O. TINGA

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

PRESBITERO J. VELASCO, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the
opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
61
effect of section 71 of Act No. 3030, which provides for a period of

prescription of one year for offenses resulting from the Act.
The Election Law is contained in Chapter 18 and parts of Chapter

65 of the Administrative Code. Act No. 3030 is entitled "An Act to
amend certain sections and parts of sections of chapter eighteen,
Republic of the Philippines known as the Election Law, and chapter sixty-five, on penalties for
SUPREME COURT violations of certain administrative laws, of Act Numbered
Manila Twenty-seven hundred and eleven, entitled 'An Act amending the
Administrative Code,' to make more effective the provisions and
EN BANC purpose of said Election Law, and for the other purposes." All of its
sections, except the last two, are by their terms amendatory of the
G.R. No. L-18260 January 27, 1923 corresponding sections of the Election I aw as embodied in the
Administrative Code. The last two sections of the Act read:
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,
vs. NORBERTO PAREL, Defendant-Appellant. SEC. 71. Offenses resulting from violations of this Act shall
prescribe one year after their commission.
V. Singson Pablo, A. Reyes, and V. Paz for appellant.
Attorney-General Villa-Real for appellee. SEC. 72. This Act shall take effect on its approval.
OSTRAND, J.: Previously to the enactment of Act No. 3030 there was no

limitation to action for violations of the Election Law and the
Upon an information filed nearly two years after the commission question presented for our consideration is whether section 71 of
of the offense, the defendant was found guilty of having, as an the later Act is retroactive to the extent of making the period of
election inspector, aided illiterate voters in preparing their ballots limitation or prescription there provided for applicable to
at the general election held June 3, 1919, without being violations of the Election Law committed before March 9, 1922,
accompanied by an election inspector of the opposite political the date upon which the later, or amendatory, Act No. 3030 went
party and was sentenced to suffer imprisonment for the term of into effect.
three months under section 2639 of the Administrative Code,
which makes an election official "who wilfully declines or fails to In most states of the American Union the rule prevails that a
perform any duty or obligation imposed by the Election Law" statute of limitations of criminal actions is on a parity with a
criminally liable and provides a penalty therefor of imprisonment similar statute for civil actions and has no retroactive effect unless
for not less than one month and not more than one year or a fine the statute itself expressly so provides, and practically all of the
of not less than P200 and not more than P500 or both. authorities cited in support of the theory that such is also the rule
here, are upon that point. As from our point of view the rule stated
The case is now before us upon a motion to quash the proceedings does not obtain in the Philippine Islands, these authorities have, in
on the ground that the action is barred through the retroactive our opinion, no bearing whatever upon the question here at issue
62
and we shall therefore devote neither time nor space to their applicable to cases where "final sentence has been pronounced
further discussion. and the convict is serving same." chanrobles virtual law library
In our opinion, the determination of the present case clearly But it is argued (1) that the Election law is a special law to which
hinges upon the construction of articel 22 of the Penal Code, which the provisions of article 22 of the Penal Code are not applicable;
reads as follows: (2) that the subject of prescription or limitation of actions falls
within the domain of adjective law and cannot be considered penal
Penal laws shall have a retroactive effect in so far as they favor the law within the meaning of article 22, and (3) that the period of
person guilty of a felony or misdemeanor, although at the time of prescription provided for in section 71 of Act No. 3030 is, by the
the publication of such laws a final sentence has been pronounced terms of that section, limited to offenses resulting from the
and the convict is serving same. violation of that Act and does not affect offenses made punishable
by prior legislation.
This article is of Spanish origin, is based on Latin principles, and it
seems, indeed, too obvious for arguments that we, in its (1) The first point mentioned must be considered settled by
interpretation, must have recourse to Spanish or Latin previous decisions both of this court and of the supreme court of
jurisprudence. In the case of United States vs. Cuna (12 Phil., 241), Spain. In the case of United States vs. Hocbo (12 Phil., 304), article
this court held that "neither English nor American common law is 22 was applied to Act No. 1773 of the Philippine Commission;
in force in these Islands, nor are the doctrines derived therefrom in United States vs. Parrone (24 Phil., 29) and United States vs.
binding upon our courts, save only in so far as they are founded on Almencion (25 Phil., 648), to Acts Nos. 1189 and 2126; and in
sound principles applicable to local conditions, and are not in sentences of the supreme court of Spain of July 13, 1889 and April
conflict with existing law." In that case the Spanish doctrine 26, 1892, it was held applicable to the penal provisions in the
invoked was more unfavorable to the accused that the common Spanish Electoral Law. All of these decisions are well supported
law rule, but was, nevertheless, adopted by the court. In the both by reason and by authorities and must now be regarded as
present case, the Spanish doctrine is more favorable to the the law of the land upon this subject.
accused and considering the well-known principle that penal laws
are to be construed most liberally in favor of the accused, we have (2) In regard to the second point that the subject of prescription of
stronger reasons here than existed in the Cuna casae for rejecting penalties and of penal actions pertains to remedial and not to
the American doctrine as to the irretroactivity of penal statutes. substantive law, it is to be observed that in the Spanish legal
Both consistency and sound legal principles, therefore, demand system, provisions for limitation or prescription of actions are
that we, in this case, seek our precedents in Latin rather than in invariably classified as substantive and not as remedial law; we
American jurisprudence. thus find the provisions for the prescription of criminal actions in
the Penal Code and not in the Ley de Enjuiciamiento Criminal. This
For a long period it has been the settled doctrine in countries is in reality a more logical classification than the one obtaining in
whose criminal laws are based on the Latin system that such laws the American criminal law. In criminal cases prescription is not,
are retroactive in so far as they favor the accused. strictly speaking, a matter of procedure; it bars or cuts off the right
(Fiore, Irretroactividad e Interpretacion de las Leyes, p. 401.) In to punish the crime and, consequently, goes directly to the
Spain and in the Philippine Islands this doctrine is, as we have substance of the action. We are confident that no Spanish lawyer
seen, re-inforced by statutory enactment, and is even made will be found to assert that criminal procedure is not a branch of
63
criminal or penal law. Moreover, we might simply call attention to unjust in regard to the essence of the criminal action.
the fact that in the case of United States vs. Hocbo, supra, article 22 Consequently, if the sovereign power should enforce its right
of the Penal Code was applied to what, in the American law, would under the former law it would be guilty of an inconsistency in view
be considered a remedial provisions, and there let the matter rest. of its implied admission that the old law was too severe and
But it is argued that the decision in the case of United States vs. consequently unjust. The necessity therefore of applying the less
Hocbo, supra, is erroneous and that the term "Leyes Penales" severe new law rests upon the principle that the sovereign power
employed in article 22 of the Penal Code has reference merely to cannot exercise its right to punish except only within those limits
laws providing for penalties, this contention being based largely of justice which that sovereign power has established as being just
on the fact that the chapter in which article 22 is found bears the and equitable at the time of exercising that right.
title or heading "Penalties in General," and we shall therefore enter
more fully into the discussion of this point, especially as it, in our On the other hand, when the new prespective law is more rigid
opinion, is the turning point of the case. than the former, whether as to the admissibility of the prescription
itself or as to the conditions and time required for its effectiveness,
It may be conceded that if the arrangement of the various subjects care must be taken that that law is not applied to crimes
or topics contained in the Code were more logical or rigid, there committed before its enactment, not because the accused has
might be some force in the contention that the retroactivity acquired any right so to prevent its application, but for the reasons
provided for in article 22 relates only to penalties, and not to that we have already stated. What right right can the accused have
prescription, in criminal cases. But examining the chapter to endeavor to prevent that which the sovereign power has the
embracing article 22, we find that of the four articles therein right to do in order to preserve public order? Let us not talk
contained, only one, article 24, relates expressly to penalties; therefore of vested rights of the accused, but let us say it, and with
article 21 provides that no crime shall be punishable by any emphasis, that the reason for the irretroactivity of the more severe
penalty not prescribe by law prior to its commission and is, in a law is found in the principle that the sovereign power cannot,
certain sense, a limitation upon criminal actions; article 23 deals without committing an injustice, apply the more severe
with the effect of pardons and with civil liability. Under these prescriptive provisions; and those provisions cannot be justly
circumstance, it is difficult to find room for the conclusion that the applied if they have not been previously promulgated. And the
intermediate article 22 must relate only to penalties and not to rights itself to punish does not arise except by virtue of a law
limitations upon the imposing of penalties or upon the bringing of promulgated and in force at the time of the commission of the
penal actions. crime. The more rigid the prescriptive law the more enlarged the
field of criminal prosecution and this affects the substance thereof,
Fiore, whose work on the irretroactivity of statutes is regarded as because it fixes the basis and the sphere of the right to punish. And
a legal classic in Latin countries, in discussing the question under can all of these be done by the sovereign power without any law?
consideration says: Can that power, without doing an injustice, extend the effects of
the new law to said acts committed before its enactment? For the
Indeed when the new law reduces the period of prescription of same reasons which prevent the sovereign power from punishing
criminal actions or establishes easier requirements to give the those acts that have not expressly been made punishable as crimes
prescription effect, it is event that the reduction conceded by the by the former law or from imposing the more severe penalties
new implies an acknowledgment on the part of the sovereign provided in the new law when such acts have been committed
power that the more severe requirements of the former law were before those penalties were established by legislative enactment,
64
so also it cannot enlarge the criminal action (that is to say, its right in his work on Criminal Pleading and Practice, 9th ed., says in
to punish) by a subsequent law and apply to acts executed before section 316:
its enactment the less favorable provisions of prescription therein
established. . . While, as will be hereafter seen, courts look with disfavor on
prosecutions that have been unduly delayed, there is, at common
For the reasons stated, we come to the conclusion that, as a matter law, no absolute limitation which prevents the prosecution of
of justice which must regulate all the elements of a criminal action, offences after a specified time has arrived. Statutes to this effect
that the accused must be given the benefit of the provisons of the have been passed in Englang and in the United States, which we
new law when more favorable to him and that, unless there should now proceed to consider. We should at first observe that a mistake
be final and conclusive judgment at the time, we must also admit is sometimes made in applying to statutes of limitations in
in matters of prescription that the new law, when less severe, criminal suits the construction that has been given to statutes of
should be applied. The same principle applies when the limitation in civil suits. The two classes of statutes, however, are
modifications introduced by the law refer to the prescription of essentially different. In civil suits the statute is interposed by the
the penalty, because in its substance the prescription of the legislature as an impartial arbiter between two contending parties.
penalty is equivalent to the prescription of the criminal action. In the construction of the statute, therefore, there is no
(Fiore, Irretroactividad e Interpretacion de las Leyes, pp. 426-428.) intendment to be made in favor of either party. Neither grants the
right to the other; there is therefore no grantor against whom the
We have here quoted the leading Latin authority on the retroactive ordinary presumptions of construction are to be made. But it is
of statutes and there can be no doubt that the doctrine stated by otherwise when a statute of limitation is granted by the State. Here
him is of general acceptance in countries whose legislation is the State is the grantor, surrendering by act of grace its rights to
founded on Latin principles; at least, we have found nothing to the prosecute, and declaring the offence to be no longer the subject of
contrary. Considering that the men who prepared the Penal Code prosecution. The statute is not a statute of process, to be scantily
were steeped in the principles of Latin law, it is impossible to and grudgingly applied, but an amnesty, declaring that after a
escape the conclusion that they had these principles in mind in certain time oblivion shall be cast over the offence; that the
formulating article 22 and intended it to apply to criminal law in offender shall be at liberty to return to his country, and resume his
general and not merely to the branch thereof which deals with the immunities as a citizen; and that from henceforth he may cease to
duration or measure of penalties. It is very true that due, perhaps, preserve the proofs of his innocence, for the proofs of his guilt are
to the fact that there have been no changes in the provisions of the blotted out. Hence it is that statutes of limitation are to be liberally
Penal Code in regard to the prescription of actions, there are no construed in favor of the defendant, not only because such
direct adjudications by the supreme court of Spain upon the liberality of construction belongs to all acts of amnesty and grace,
subject and the Spanish commentators on the Code have generally but because the very existence of the statute is a recognition and
discussed article 22 in its relation to the measure of penalties notification by the legislature of the fact that time, while it
merely, but this circumstance does not, of course, affect the gradually wears out proofs of innocence, has assigned to it fixed
principle involved and is not necessarily of any special and positive periods in which it destroy proofs of guilt.
significance. Independently of these views, it must be remembered that delay in
instituting prosecuting is not only productive of expense to the
It may be interesting to note in passing that the same principle has State, but of peril to public justice in the attenuation and
also met with the approval of high American authority. Wharton, distortion, even by mere natural lapse of memory, of testimony. It
65
is the policy of the law that prosecutions should be prompt, and But it is vigorously argued that the language of the section is so
that statutes enforcing such promptitude should be vigorously plain as to make any interpretation unnecessary and that when a
maintained. They are not merely acts of grace, but checks imposed section of the Act says "this Act" it means the Act in which it occurs
by the State upon itself, to exact vigilant activity from its and no other. As far as the present case is concerned, both theories
subalterns, and to secure for criminal trials the best evidence that will lead to the same result if article 22 of the Penal Code is taken
can be obtained. into consideration and we shall, therefore, for the purposes of the
argument, take the language of the section literally and assume
Now, considering the genesis of article 22 of the Penal Code and its that the period of prescription it establishes relates only to
underlying principles as above stated, can there be any doubt as to offenses defined and penalized in Act No. 3030.
its meaning in regard to any particular offense? It can only mean
what it in slightly different language says; namely, that whenever a Comparing the penal provisions of the Election Law with those of
new statute dealing with crimes establishes conditions more Act No. 3030, it will be found that practically all of the offenses
lenient or favorable to the accused in regard to a certain offense, defined in the former law are also defined in the same language in
the statute becomes retroactive as to the offense and the accused Act No. 3030, the only difference being that the penalties have
must receive the benefit of the new conditions no matter whether been increased.
the offense was committed before or after the enactment of the
new statute. We repeat that article 22 of the Penal Code applies to all penal
statutes alike and furnishes our only guidance in determining the
That the article is still in force is beyond question. As long as it so extent to which a penal statute is retroactive. Unless the statute is
remains in force it is of general application to all penal statutes, taken out of its operation either by express provisions of law or
past, present, and future, and furnishes the rule for determining to by necessary implication, the article applies. There is, as far as we
what extent they are retroactive or merely prospective. It follows can see, absolutely nothing in Act No. 3030 indicating that it is not
that unless a penal or criminal statute expressly, or by necessary subject to exactly the same measure of retroactivity as any other
implication, provides that it shall not be regarded as retroactive, it penal statute. Retroactivity, as we here speak of it, means of
becomes subject to the rule laid down by that article. course, retroactivity as to particular penal offenses, and bearing
this in mind in connection with the provisions of article 22, does it
(3) We will now turn to the third point raised, i. e., that section 71 not, then, seem obvious that if an offense was defined and made
of Act No. 3030 by its terms is applicable only to offenses resulting punishable by the Election Law as contained in the Administrative
from that Act and cannot be given retroactive effect. Code and is defined in exactly the same language in the
amendatory Act No. 3030 with merely an increase in the penalty,
In view of the fact that Act No. 3030 is only amendatory of the article 22 of the Penal Code must be held to be applicable and that
Election Law, we think it is fair to presume that section 71 was in all in which the new law is more favorable to the accused it
intended by the Legislature as an amendment to the Election Law becomes retroactive as to that offense?
in order to remedy an obvious and quite serious defect in that law.
From this point of view, there can, of course, be no doubt that the An illustration, by way of analogy, may, perhaps, make this even
period of prescription fixed by the section applies to all election clearer: Let us suppose that a statute is enacted defining the crime
offenses alike whether committed before Act No. 3030 went into of murder in the same language in which it is defined in the Penal
effect or not. Code, but providing that the maximum penalty for the crime
66
defined in the new statute shall be life imprisonment, the statute As to this we can only say that it is our duty to apply the law as we
containing no provision that it shall not be retroactive in its effect. find it; that it is also our duty to observe the rule that the
Would anyone then maintain that the death penalty might still be defendant in a criminal case is entitled to the benefit of all
imposed for murder committed before the new statute was reasonable doubts, both as to the facts and as to the law; and that
enacted? For a court to so hold would obviously amount to a we believe that the interests both of justice and of the public
judicial repeal of the article. And in this respect there can be no welfare will be best served by this court doing its duty without
difference in principle between the offense of murder and an fear or favor. We should, indeed, be recreant to that duty were we
election offense. to allow our zeal for the punishment of crime to lead us to distort
the language of plain provisions of the law in a sense adversely to
In the present case we have a situation identical in principle with the accused. In regard to the presents case, we also believe that the
the state of facts we have assumed in our illustration. The disadvantages of the uncertainly and confusion which would
defendant was convicted by the Court of First Instance under eventually result from a forced construction of the law would
section 2639 of the Administrative Code of the offense of having much more than offset the advantages of securing the convictions
failed, as an election inspector, "to perform any duty or obligation and imprisonment for a few months of a relatively small number
imposed by the Election Law." Section 49 of Act No. 3030, in of infractors of the Election Law. The decision of the United States
amending section 2639 of the Administrative Code, defines the Supreme Court in the case of Weems vs. United States (217 U.S.,
offense in question in exactly the same language as failing "to 349) had much more serious consequences in this respect, yet,
perform any duty or obligation imposed by the Election Law," and that court did not hesitate there to interpret the law according to
only increased the penalty; the offense is exactly the same under its best judgment.
both sections. Consequently, if we hold that the prescription
provided for in section 71 applies to all offenses defined and In the same connection, but speaking for myself only, I will frankly
penalized in Act No. 3030 and not merely to offenses there defined confess that not only do I not share the gloomy forebodings of
and made punishable for the first time and we further hold, as we some of the members of this court as to the practical effect of our
must, that article 22 of the Penal Code is applicable to all penal interpretation of law, but that neither am I convinced that the
statutes, including those for the limitation of penal actions, and not action of the Legislature in making the one year period of
merely to the measure of the penalty, the conclusion is irresistible prescription retroactive was wholly inadvisable. Where political
and unavoidable that the present action, not having been parties represent personal followings rather than divergent
instituted within the prespective period fixed by section 71 of Act political principles, changes in political allegiance are frequent and
No. 3030, must be dismissed. it is therefore especially important that election offenses be
brought before the courts promptly. If several years are allowed to
A strong appeal has been made to our emotions by describing in elapse before the prosecution is instituted, many of the voters
rather vivid colors the disastrous consequences which will result may, in the meantime, have become dissatisfied with their former
from the dismissal of action in which the accused have already party connections or, in effect, resentful towards the leading
been convicted of election offenses by the trial courts and it has members of the party. Such persons are usually willing witnesses
been intimated that for us to impute to the Legislature the for the prosecution of their former party associates, are
intention of bringing about such a state of affairs would constitute particularly dangerous to the accused by reason of the inside
a serious reflection not only on the honor of the Legislature but information they are supposed to possess, and their testimony is
also on this court. likely to be given greater credit than that of persons known to
67
have belonged to a party opposed to that of the accused. And it is wilfulness on the part of the accused, though there is, perhaps,
no reflection on the ability and integrity of the judiciary to say that sufficient proof that each of the three inspectors wrote ballots or
judges, knowing as they do that irregularities have, unfortunately, parts of ballots for illiterate or disabled voters without being
been quite common in past elections, are frequently inclined to accompanied by another inspector.
look with suspicion upon an election official accused of an
infraction of the Election Law and to turn the usual presumption of The principal witness for the prosecution is
innocence into a presumption of guilt. Under such circumstance it the Nacionalista inspector. He piously asserts that he protested
is not to be expected that the motives prompting the witnesses for against the practice followed by the board of inspectors and that
the prosecution will be very closely scrutinized. It therefore seems he, for his part, always had Norberto Parel, the accused,
to me that the Legislature has acted wisely in providing a short accompany him in writing ballots. He admits, however, that after
period of prescription of elections offenses, so that unless the having written, the first few names on the ballots, Parel would
offense is sufficiently obvious and grave to attract the attention of leace with, but that he, the witness, continued to write the rest of
the prosecuting authorities within that period, the matter will be the names on the ballots unaccompanied. He further states that he
allowed to rest. What is true as to future offenses is also, to some did not offer to accompany the other inspectors because he was
extent, true of similar offenses in the past, and I can therefore see too busy writing ballots himself and continued to be so occupied
no very serious objections to the retroactivity of the prescription. until late in the afternoon. The protest he alleges to have made
It is, of course, to be regretted if guilty persons escape well- does not appear upon the returns and the other inspectors deny
deserved punishment, but it is more important that no innocent that he made any protest whatever. The testimony of the other
man be made to suffer punishment unjustly. witnesses for the prosecution is limited to statements that they
saw the two Democrata inspectors write ballots for illiterate
For an illustration I need not to go beyond the present case: The persons without being accompanied by other inspectors. There is
accused was an election inspector in the elections of June, 1919. In no evidence in the record that any frauds were committed in the
the precinct where he was acting there were two inspectors of writing of the ballots.
the Partido Democrata and only one of the Partido Nacionalista.
The law required an inspector in writing the ballots of illiterate or Exhibit D of the prosecution shows that there were 277 voters
incapacitated voters. The defendant is accused of having written unable to write their ballots, an unusually large number. In view of
ballots without being so accompanied and is prosecuted under the fact that there was only one Nacionalista inspector, a full
section 2639 of the Administrative Code, which makes it a penal compliance with the law would have required his presence at the
offense "to wilfully decline or fail to perform any duty or obligation writing of every one of the 277 ballots, a practical impossibility
imposed by the Election Law." As will be seen, in order to when it is considered that the writing of ballots did not commence
constitute a penal offense the refusal or failure must be wilful. until 8 a. m. (see testimony of Justino Pre, witness for the
Wilfulness is therefore an element of the crime and must be prosecution) and that the polls must close at 6 p.m. Any attempt to
alleged and proven beyond a reasonable doubt. carry out the letter of the law would have led to the closing of the
polls before the termination of the voting. As far as the record
In penal statutes the word " 'wilfully' means with evil intent or shows this may very well have been the reason for the failure of
with legal malice or with a bad purpose" (Bouvier's Law the inspectors to strictly observe the law and they may have acted
Dictionary), and I have been unable to find anything in the in good faith.
evidence which can even raise a presumption of that kind of
68
The trial court found the defendant guilty and in view of the fact More than three years have passed since the elections of 1919 and
that the word "wilfully," depending on the context, is sometimes the Election Law has since been so amended as to remedy many of
used as a synonym for "intentionally" and that it, in the Spanish the defects which offered temptations and opportunities for
text of the Election Law, is transfered into "voluntariamente," I am infractions of the law and rendered the placing of the
not so sure but that this court would have affirmed the judgment. responsibility for such infractions difficult. Under the
It may be noted that the facts in case R.G. No. 18261 1 are exactly circumstances, it is by no means certain that the Legislature has
the same as in the present case. Personally, I view the dismissal of acted unwisely in wiping the state clean and casting oblivion over
the case with complete equanimity; we cannot purify elections by election offenses the prosecution of which has not, after so many
giving penal statutes a harsher interpretation than evidently years, been brought to a conclusion. In any event, the impending
intended by the lawmakers. An attempt on our part to do so may alleged calamity is not so grave a nature as to justify a court in
possibly have the opposite effect by making it more difficult to misinterpreting the law in order to avert it.
secure competent election officials and will produce the inevitable
reaction, either in the form of executive clemency or in over- For the reasons stated, the motion is granted and the present case
lenient legislation. We have had instances of such reactions in the is hereby dismissed, with all costs de oficio. So ordered.
past.
Araullo, C. J., Avanceña, Villamor, and Romualdez, JJ., concur.
Including the present, there are eleven cases before this court
which will be affected by this decision; according to information Separate Opinions
furnished by the Attorney-General, there are also three cases
pending decision in the Courts of First Instance and fourteen cases STREET, J., concurring: chanrobles virtual law library
pending trial in which prosecution has not been instituted within a
year from the date of the discovery of the alleged offense. In some When the question here presented was first brought before this
of these cases the prosecution is, no doubt, meritorious, but, in court in another case the undersigned, while admitting in a
view of the delay in presenting the complaints, it is not general way that article 22 of the Penal Code was applicable to
unreasonable to assume that most of them are more or less of the laws relating to election offences, yet he hesitated to adopt in their
character of the present case. entirely the conclusions now stated in the opinion of Mr. Justice
Ostrand and suggested that article 22 should be construed to
It may be stated, in this connection, that the accuracy of the figures apply only to such provisions of penal laws as define the crimes or
here given as to cases pending and involving the principle under fix the penalties. After a full consideration of the matter, the
discussion has been questioned on the strength of a list of cases majority of the court do not accept this narrow view of the
furnished Mr. Justice Malcolm by the Attorney-General. An application of said article; and it is now to be given effect in
examination of the sources of this list, consisting of accordance with the literal meaning of the language used, without
communications from the clerks of the various Courts of First evasion or qualification. To the position thus taken by the majority
Instance, reveals, however, that the great majority of the cases the undersigned is finally constrained to accede, partly because
there enumerated involve prosecutions for offenses committed in the will of the majority must prevail and partly because the
connection with the general elections of 1922 and are not affected position assumed in the opinion written by Mr. Justice Ostrand
by the present decision. Such examination also shows that the now appears to the undersigned to be at least as sound as the
figures here qouted are correct. position previously assumed by the writer of this.
69
NOTE. - See dissenting opinion of Mr. Justice Malcolm in the case supplementary replies, both parties stating at length the reasons
of People vs. Moran, page 416, ante. and legal grounds for their respective contentions.
Republic of the Philippines While it is a rule of general application that unless the defense of
SUPREME COURT prescription is pleaded in the trial court, it will be deemed to have
Manila been waived and cannot later be raised, yet this rule is not of
absolute application in criminal cases, for if the prescription of the
EN BANC crime, as well as of the penalty whereby criminal responsibility is
extinguished, may, as is the case here with regard to the former, be
G.R. No. L-17905 January 27, 1923 provided by statute after the termination of all the proceedings in
the trial court, as well as in the appellate court, and when the case
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, has already been submitted for discussion and is awaiting only the
vs. final judgment; and if the prescription of the crime is but the
JUAN MORAN, FRUCTUOSO CANSINO, and HILARIO extinguishment of the right of the State to prosecute and punish
ODA, defendants-appellants. the culprit, it is beyond question that, once the State has lost or
waived such right, the accused may, at any stage of the proceeding,
Pedro Ma. Sison for appellants. ask and move that the same be dismissed and that he be absolved
Attorney-General Villa-Real for appellee. from the complaint. And not only that, — the right to prosecute
and punish the criminal having been lost by the prescription of the
ARAULLO, C. J.: crime expressly provided by the statute, the State itself, the
Government through the proper court, is in duty bound to make a
On March 31, 1922, the decision of this court in the present case, pronouncement to that effect. Therefore, as on March 9th of this
affirming the judgment of the Court of First Instance of year, 1922, when Act No. 3030 went into effect, providing in its
Pangasinan, was published, but the term of imprisonment by the section 71 that offense resulting from the violations thereof shall
said court upon the accused, for a violation of the Election Law, prescribe one year after their commission, the accused and the
defined and punished in section 2639 of the Administrative Code, Attorney-General had already filed their respective briefs in this
was increased to six months from which judgment the present court for the prosecution of the appeal taken from the judgment of
appeal was taken by the accused. The accused, after asking for a the court below, and the hearing of the case had already been held,
reconsideration of the said decision and a rehearing and pending this court itself, without the necessity of any motion of the
the resolution on the said petition, filed a special motion on May accused, or of the Attorney-General, should have declared the
2d of this year, alleging that the crime complained of had crime in question to have prescribed, in view of the provision of
prescribed under the provision of section 71 of Act No. 3030, said section. Consequently, as this court had not up to that time
enacted by the Legislature on March 9, 1922, and praying that they made such pronouncement, the accused are perfectly justified in
be absolved from the complaint. Upon this motion the Attorney- asking, as they have done in their motion of May 2d of this year,
General was heard, having filed an answer and a supplemental that the offense having prescribed, they be absolved from the
answer, with the corresponding arguments, opposing the same, as complaint. This duty is imperative upon the courts of justice at any
well as the accused who filed their reply thereto and moment that the offense appears to have prescribed under the
provision of the law. With particular reference to the present case,
70
this conclusion is necessarily reached from the letter as well as the the 2d of May of this year cannot legally be considered; on the
spirit of the provisions of the Penal Code relative to prescription, contrary, said motion must be decided before the petition for the
and from that of section 71 of the aforesaid Act No. 3030, for once reconsideration of the decision published on the 31st of March of
the offense or the penalty has prescribed, the State has no right to last year, and for a rehearing of the case, or, to be more exact, the
prosecute the offender, or to punish him, and if he has already said petition must be ignored, for the resolution of the aforesaid
been punished, it has no right to continue holding him subject to motion, if favorable to the accused, would put an end to the
its action by the imposition of the penalty. The plain precept proceeding right at its present stage.
contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to The first question to be decided, in connection with the contention
persons accused of a felony or misdemeanor, even if they may be of the accused, is whether or not the prescription provided in
serving sentence, would be useless and nugatory if the courts of section 71 of Act No. 3030 refers only to that Act and not to any
justice were not under obligation to fulfill such duty, irrespective other, for said section 71 says: "Offenses resulting from violations
of whether or not the accused has applied for it, just as would also of this Act shall prescribe one year after their commission," and
all provisions relating to the prescription of the crime and the section 72 adds: "This Act shall take effect on its approval."
penalty.
It is enough to take into consideration the fact that Act No. 3030,
That such is the duty of the courts of justice and has been so is, as its title indicates, amendatory to several sections and parts of
recognized by this court, is shown by the decision in the case sections of chapter 18 of the Administrative Code, known as the
of United States vs. Rama, R. G. No. 16247, 1 for the crime of murder Election Law, and of chapter 65 on penalties for the violation of
of four persons, committed in the month of July, 1902, in the various administrative laws, among them, those of the Election
province of Cebu, in which one of the accused was sentenced by Law itself, included in said chapter 18 of the Administrative Code,
the Court of First Instance of the said province to death and the in order to understand that when the Legislature used the words
other two to life imprisonment. That case was brought to this "This Act," that is, Act No. 3030, it referred, necessarily, to the
court on appeal and, after the filing of the respective briefs of the Election Law included in various sections and provisions of the
accused and the Attorney-General a hearing was had. No aforesaid two chapters of the above-mentioned Code, that is, the
allegations was made as to the prescription of the crime, yet this Election Law prior to Act No. 3030, under which the herein
court rendered a decision (not yet published in the Official accused were convicted. One needs but examine one by one all the
Gazette) wherein, after finding that two crimes of murder and two sections of said Act No. 3030, each of which declares the sense in
of homicide had been committed and that seventeen years had which each of the sections included in said chapters in amended,
already elapsed from the commission of the latter to the in order to convince himself that said Act No. 3030 is similar to the
institution of the judicial proceeding for the investigation and law that preceded it, with the amendments and some additions
punishment thereof, that is, more than the fifteen years fixed by thereto. If the Legislature had passed and enacted a new Election
lay for the prescription of the crime of homicide, this court held Law different from that contained in the above-mentioned
that the said two crimes of homicide had prescribed and the chapters of the Administrative Code, then it may be said that the
criminal responsibility of the three accused for the said crimes phrase "This Act" can in no way refer to the prior Election Law.
extinguished, convicting the accused only of the two crimes of Furthermore, if the offenses resulting from the violations of the
murder. There is, therefore, on reason whatsoever why the Election Law, the provisions of which are contained in the
allegation of prescription made by the accused in their motion of aforesaid chapters of the Administrative Code, are the same
71
offenses provided for in Act No. 3030, though with some to whether or not article 22 of the Penal Code above referred to
modifications in the details as to some of them and with increase was applicable. And it was so recognized by the Supreme Court of
in the penalty, it cannot be denied that when the Legislature used the United States, in an appeal taken by writ of error by the
the words "This Act" in section 71 of Act No. 3030, wherein it is accused, Ong Chang Wing (40 Phil., 1046), said high court having
provided that said offenses shall prescribe one year after their limited itself to declaring that the accused, not having been
commission, it necessarily referred to offenses resulting from the convicted by this court of an offense which was not punishable
violations of the former Election Law, as amended by said Act No. when committed, and this court having held only that the right to
3030. Besides, one of the objects of this Act, as its title indicates, is impose the penalty prescribed by the Penal Code of the Philippines
to make more effective the provisions and the purposes of the had not been lost by the subsequent statute, Act No. 1757, of the
former Law contained in the Administrative Code; so that Act No. Philippine Commission, the accused had not been denied due
3030 rather than being an integral part of the former election law process of law, for as the Supreme Court of the United States says
is in conjunction with the latter the only Election Law in force; and in its decision, the duty of that court in that case was to determine
any other interpretation to the contrary of the phrase "This Act" whether or not the judgment of this court amounted to a denial of
cannot, in our opinion, be accepted as good logic and in due process of law. Therefore, the decision rendered in those two
accordance with the principles of sound reasoning. cases cannot be invoked in the one now before us.
It is true that in the next section, 72, it is provided that said Act No. In the case of United States vs. Lao Lock Hing (14 Phil., 86)
3030 shall take effect on the date of its approval, which took place and United States vs. Calaguas (14 Phil., 739), cited also in support
on March 9, 1922, but the meaning of such an expression in of the contrary opinion, as the offenses therein involved were
connection with prescription is that prescription can be invoked penalized by special laws, that is, by the Opium Law, in the former,
from that date, as was done by the accused, and not that such and by the Law of Police and Railroad Preservation, in the latter,
provision may have a retroactive effect from that same date. this court held, as it could not have done otherwise, that, under
article 7 of the Penal Code, the provisions of the said Code were
In this connection, there arises the second question as to whether not applicable to those offenses, inasmuch as said offenses were
or not the provision of article 22 of the Penal Code above cited, penalized by the said law which prescribed a special and definite
declaring the retroactivity of penal laws in so far as they are penalty for said offenses, but in those cases said article 7 of the
favorable to the defendant in a criminal action for a felony or Penal Code was not interpreted in connection with the application
misdemeanor, is applicable to crimes penalized by special laws, as of article 22 of the same Code, providing for the retroactivity of
does Act No. 3030, account being taken of the fact that, under penal laws favorable to persons accused of a felony or
article 7 of the Penal Code, offenses punishable under special laws misdemeanor. Wherefore neither can the holding of this court in
are not subject to the provisions of the said code. those cases have any application to the one before us.
Several decisions have been rendered by this court on this The case in which this court plainly and definitely decided the
question in which the distinguished members of this court hold question under consideration is that of United States vs.
opposite views. Among those may be cited the case of United Parrone (24 Phil., 29). There the said accused was charged with
States vs. Cuna (12 Phil., 241), which is cited in a later case, United the crime of falsification of a cedula certificate, definite and
States vs. Lao Lock Hing (14 Phil., 86), in which case this court did punished in section 55 of Act No. 1189 of the Philippine
not lay down a definite rule, but expressly reserved its opinion as Commission, but before the conviction of the accused, said Act was
72
amended by Act No. 2126 of the Philippine Legislature, which by law and has provided a penalty. It (art. 21) is a
prescribed a lesser penalty than the previous Act, and this court, declaration that no person shall be subject to criminal
after a careful perusal of all its decisions dealing with that prosecution for any act of his until after the State
question, as above indicated, and a luminous and exhaustive has defined the misdemeanor or crime and has fixed a
discussion on the interpretation of article 7 of the same Code in penalty therefor. The doctrine announcement by this
connection with the retroactivity of the penalty, in so far as it is section has been considered of so much importance to the
favorable to the accused, held, upon the appeal taken by the said citizen of a State that many of the States of the Union have
accused from the judgment of the court below, that, under the been pleased to include its precepts in their constitutions
provisions of article 22 of the Penal Code, the penalty provided in or have so declared by express provision of law.
Act No. 2126, which was later than Act No. 1189, was the proper
penalty to be imposed upon the accused in that case. In the course Article 22 provides that "Penal laws shall have a retroactive
of that decision, the court said: effect in so far as they favor the person guilty of a felony or
misdemeanor, although at the time of the publication of
Considering the provision of article 7 of the Penal Code, are such laws a final sentence has been pronounced and the
the provisions of article 22 of the same Code applicable to convict is serving same." This provision clearly has no
the penal laws of the Philippine Islands other than the direct application to the provisions of the Penal Code. Its
provisions of the Penal Code? Article 22 is found in chapter (art. 22) application to the Penal Code can only be invoked
1 of title 3 of the Penal Code. Said chapter is where some former or subsequent law is under
entitled "Penalties in General". Article 21 of said title and consideration. It must necessary relate (1) to penal laws
chapter provides that "no felony or misdemeanor shall be existing prior to the Penal Code; or (2) to laws enacted
punishable by any penalty not prescribed by law prior to its subsequent to the Penal Code, in which the penalty was
commission." This article is general in its provisions and in more favorable to the accused. Rule 80, Ley Provisional
effect prohibits the Government from punishing any person para la aplicacion de las disposiciones del Codigo Penal.
for any felony or misdemeanor with any penalty which has Under the provisions of said article 22, if a crime had been
not been prescribed by the law. It (art. 21), therefore, can committed prior to the date of the Penal Code the
have no application to any of the provisions of the Penal punishment for which was more favorable to the accused
Code for the reason that for every felony or misdemeanor than the provisions of the Penal Code, it is believed that the
defined in the Penal Code a penalty has been prescribed. accused might invoke the provisions of said article (22)
even though he was not placed upon trial until after the
The provisions of article 21 can only be invoked, therefore, Penal Code went into effect. (U. S. vs. Cuna 2). So also if by
when a person is being tried for a felony or a misdemeanor an amendment to the Penal Code or by a later special law
for which no penalty has been prescribed by law. Article 21 is the punishment for an act was made less severe than by the
not a penal provision. It neither defines a crime nor provisions of the Penal Code, then the accused person
provides a punishment for one. It has simply announced might invoke the provisions of said article. It appears to be
the policy of the Government with reference to the clear, then, that article 22 of the Penal Code can only be
punishment of alleged criminal acts. It is a guaranty to the invoked when the provisions of some other penal law than
citizen of the State that no act of his will be considered the provisions of the Penal Code are under consideration.
criminal until after the Government has made it so In other words, the provisions of article 22 can only be
73
invoked with reference to some other penal law. It has no proceedings, because the prescription of the crime is intimately
application to the provisions of the Penal Code except in connected with that of the penalty, for the length of time fixed by
relation with some other law. It is not believed, therefore, the law for the prescription depends upon the gravity of the
that the Legislature in enacting article 7 of the Penal Code offense, as may be seen from Title VI of Book I of the Penal Code,
intended to provide that article 22 should not be applicable containing, as its heading indicates, "General Provisions Regarding
to special laws. Felonies and Misdemeanors, the Persons Liable and the Penalties,"
without distinguishing between the penalties and the
There can be no doubt whatsoever that such was the intention of extinguishing of the criminal responsibility dealt with in said Title
the legislature, in view of the doctrine laid down by the supreme VI of said Book, which title comes next to Title V, treating of the
court of Spain, whose authority as regards the application and penalties incurred by those who evade service of sentence and
interpretation of the provisions of the Penal Code of the those who, while serving sentence, or after having been convicted
Philippines is unquestionable, because said Code is the same as by a final judgment not yet served, commit some other crime. And
that of Spain. In two cases (decisions of July 13, 1889 and April 26, aside from this intimate connection between the prescription of
1892), among others decided by that court, in which article 22 of the crime and that of the penalty, a statute declaring the
the Penal Code was alleged to have been violated by the prescription of the crime has no other object and purpose than to
imposition of the penalty of prison correccional prescribed by the prevent or annul the prosecution of the offender and, in the last
said Code, instead of prison menor, prescribed by article 168 of analysis, the imposition of the penalty. Moreover, if the provisions
the Election Law of August 30, 1870, upon the accused therein, relative to the prescription of ownership and to the prescription of
who were found guilty of a violation of the said Election Law, actions in civil matters are part of the civil law, it cannot be denied
which, was therefore, a special law in force prior to the said Penal that the provisions relative to the prescription of crimes and of
Code of that same year, the said Code having substitute the penalty penalties are penal laws or form part thereof.
of prision correccional for that of prision menor, said court held
that the appeal was not well taken on the ground that the penalty With regard to the question whether prescription must be
of prision correccional had taken the place of that of prision considered as a matter of procedural or formal law, or as a
menor prescribed by the Election Law, and while the duration of substantive law for the purpose of the retroactivity of laws, we
both penalties was the same, the correctional penalty was lighter must state, with reference to the present case, that the
and more advantageous and favorable to the accused than prision prescription provided in section 71 of Act No. 3030 is of the nature
menor, as it was of a less grave nature; so that in those two cases, both of a substantive law, in so far as it gives a person accused of
the supreme court of Spain not only applied the provisions of the any of the crimes therein referred to, the right not to be
Penal Code to a special law, but also gave retroactive effect to said prosecuted nor punished after the lapse of the period of one year
provisions on account of being more favorable to the therein from the commission of said crimes, within which the criminal
accused, in accordance with the precept of article 22 of the Penal action must be commenced, and of a procedural or adjective law in
Code. And here we have a most complete, clear and satisfactory so far as it fixes the time within which such action must
solution of whatever doubt might have arisen as to the necessarily be commenced in order that the prosecution may be
interpretation of articles 7 and 22 of the Penal Code aforesaid. legal and the proper penalty may lawfully be imposed. but
however said provision may be considered, the same must have a
It cannot be maintained that said article 22 of the Penal Code retroactive effect, as will be seen later on.
refers only to penalties and is not applicable to appeals and
74
Therefore, as the instant case involves two special laws of the special provisions as to prescription was necessary in the later
Philippine Legislature, to wit, the Election Law contained in the statute to give it a retroactive effect.
above-mentioned chapters of the Administrative Code, and Act No.
3030 which amended and modified the former, it is evident that It should be noted, however, that the Chief Justice of that Supreme
the provision declaring that offenses resulting from the violations Court voted vigorously against the said decision, stating in a well-
of said Act shall prescribe one year after their commission must reasoned dissenting opinion the following:
have retroactive effect, the same being favorable to the accused.
I . . . am of opinion, that the limitation prescribe to
This, however, is objected to, although it is based on a general prosecution applies as well to prosecutions for offenses,
principle frequently applied by many courts of the American committed before the passage of the statute, as afterwards;
Union, and in support of the objection, several decisions of the said and that, as the words of the statute plainly import, the
courts and a doctrine concerning the matter found in Corpus Juris limitation commences to run from the time of the
(volume 16, p. 222) and in Ruling Case Law are cited, wherein it is "commission of the offense," whether that was before or
established that laws fixing a period of prescription are not after its passage. The statute makes no distinction, as
applicable to crimes previously committed, unless by their terms respects the limitation; it makes no exception, from its
they are clearly retroactive or contain an express provisions to provision, of offenses previously committed; and I know of
that effect. no principle, or rule of construction, which will authorize
the court to engraft an exception upon the statute. It is a
We need not discuss each and every one of the said cases, it being statute relating to the remedy, and being enacted for the
sufficient for our purpose to take up one of them, namely, that of benefit of persons accused, is not an ex post facto law. The
Martin vs. State ([1859], 24 Tex., 62). There the Supreme Court of constitutional inhibition of the enactment of retroactive
Texas held that as regards crimes and misdemeanors, prescription laws, and laws impairing the obligation of contracts, has no
had no retroactive effect and that the Statute of Limitations application to penal statutes. Retroactive criminal laws,
enacted in 1854 could not have the effect of barring a criminal which are forbidden, are those which come under the
action instituted within two years after the enactment of said Act, denomination of ex post facto laws. There is nothing to
provided that no period of prescription was fixed in a former law prevent statutes, respecting crimes, from being
for the crime in question, that is to say, that prescription cannot be restrospective, provided they do not come under that
invoked as a bar to a criminal action for an offense like that of denomination.
falsification involved in that case, where said action was
commenced under a statute authorizing it and in the old law It is an acknowledged general rule, in the construction of
penalizing that crime no period was fixed for the prescription statutes, that they will not be construed to have a
thereof. As can be seen from a reading of the context of the restrospective operation so as to destroy or impair rights of
decision in the aforesaid case and the opinion of the writer property, or of action, unless the legislature have plainly
thereof, said doctrine was announced without taking into account expressed such to be their intention. But laws which affect
the difference between the rule governing prescription in criminal the remedy merely are not held to be within the rule or the
procedure and that applicable to civil actions, but on the contrary, inhibition against retrospective laws, unless the remedy be
application was made only of the latter; hence the holding that a entirely taken away, or so restricted, as to impair the right.
Nor, as I conceive, do statutes relating to the punishment of
75
offenses come within the rule of construction, or the would seem to apply equally to offenses committed before,
constitutional inhibition, though their effect should be as to those committed after the passage of the statute.
wholly to defeat a prosecution. On the contrary, laws
respecting crimes, whether they relate to the remedy Entertaining these views, I could not give my assent to the
merely, or to the offense, are, I think, always construed to imposition of the pains and penalties of the law, where the
relate to past, as well as future offenses, where their prosecution had not been commenced until after the
operation is in any wise beneficial to the accused; unless expiration of the time within which the legislature have
the legislature have plainly declared that they are not to positively enacted that the offense "shall be prosecuted," or
receive such a construction. To give such effect to laws be forever barred.
respecting crimes and punishments, is not to render them
retrospective, or retroactive laws, in the sense of the Furthermore, Mr. Wharton, cited in one paragraph of the said
constitutional inhibition. These terms have no application dissenting opinion, in his work entitled Criminal Pleading and
to such laws, but relate exclusively to laws affecting civil Practice, 9th edition, 1889, says that, as a general rule, the laws of
rights. (De Cordova vs. City of Galveston, 4 Tex., 470.) prescription of actions apply as well to crimes committed before
the enactment, as afterwards, and speaking of the rule to be
I do not think the reservation contained in the 81st section applied to the prescription of actions and the interpretation of the
of the act was intended to have, or should be construed to laws on that subject, he says in section 316, page 215, of said book
have, any effect upon the limitation contained in the 75th the following:
section. That section was intended only to prevent repeals
by implication, and to enforce the observance of the rule, We should at first observe that a mistake is sometimes
which would have applied on general principles, without its made in applying to statute of limitation in criminal suits
enactment, that where the act mitigates the punishment, the construction that has been given to statutes of
the milder penalty should be imposed. To hold it to apply to limitation in civil suits. The two classes of statutes,
the limitation prescribed for prosecution by the act, would however, are essentially different. In civil suits the statute
be to except all offenses committed before the passage of is interposed by the legislature as an impartial arbiter
the act, from the operation of the periods of limitation between two contending parties. In the construction of the
therein contained, and to hold that those offenses would statute, therefore, the is no intendment to be made in favor
never become barred under its provisions. I cannot think of either party. Neither grants the right to the other; there
that such was the intention of the legislature. is therefore no grantor against whom the ordinary
presumptions of construction are to be made. But it is
There may be differences of opinion, respecting the policy otherwise when a statute of limitation is granted by the
of prescribing so short periods of limitation, to prosecution State. Here the State is the grantor, surrendering by act of
for high crimes. But that was a question for the law-making grace its rights to prosecute, and declaring the offense to be
power; and I can see no reason why the legislature should no longer the subject of prosecution. The statute is not a
have intended the limitation to apply to future, and not to statute of process, to be scantily and grudgingly applied,
pas, offense. The same reasons, and the same policy, which but an amnesty, declaring that after a certain time oblivion
dictated that the prosecution should be commenced within shall be cast over the offense; that the offender shall be at
a prescribed period, after the offense was committed, liberty to return to his country, and resume his immunities
76
as a citizen; and that from henceforth he may cease to this legal provision, drew section 71 of the Election Law, Act No.
preserve the proofs of his innocence, for the proofs of his 3030, to the effect that the offenses resulting from the violations of
guilt are blotted out. Hence it is that statutes of limitation the said law prescribe one year after their commission, it ought to
are to be liberally construed in favor of the defendant, not have known that it was not necessary for it to say that said
only because such liberality of construction belongs to all provision was to have retroactive effect in so far as it was
acts of amnesty and grace, but because the very existence of favorable to the accused, inasmuch as such provision had already
the statute is a recognition and notification by the expressly been made in article 22 of the Penal Code, which was
legislature of the fact that time, while it gradually wears out applicable not only to the prescription therein provided when the
proofs of innocence, has assigned to it fixed and positive same might be favorable to persons accused of those crimes, but
periods in which it destroys proofs of guilt. Independently also to every penal law the retroactivity of which might be
of these views, it must be remembered that delay in favorable to persons accused of a felony or misdemeanor. And, this
instituting prosecutions is not only productive of expense is the best and most conclusive proof that in making the provision
to the State, but of peril to public justice in the attenuation in section 71 aforecited, the Legislature intended that same be
and distortion, even by mere natural lapse of memory, of given a retroactive effect, because the members thereof could not
testimony. It is the policy of the law that prosecutions ignore the law. From all of which it also necessarily follows that, if
should be prompt, and that statutes enforcing such that doctrine established by many courts of the metropolis is to be
promptitude should be vigorously maintained. They are not applied in the instant case, it must be by saying that the same is
merely acts of grace, but checks imposed by the State upon useless or that it was complied with in so far as the giving of a
itself, to exact vigilant activity from its subaltern, and to retroactive effect to the said prescription was concerned, because
secure for criminal trials the best evidence that can be that provision regarding retroactivity has already been expressly
obtained. made in article 22 of the Penal Code, and, therefore, it is of no
importance that in the former Election Law, that in, the amended
But even if the rule generally and frequently applied by many law, no provisions was made regarding prescription to give
courts of the American Union and the doctrine laid down by them immediate and full effect to the retroactivity provided in section
were those announced in the above-mentioned paragraphs of the 71 of Act No. 3030. The provisions of article 22 of the Penal Code,
Corpus Juris and the Ruling Case Law, the precept of article 22 of declaring the retroactivity of laws favorable to persons accused of
the Penal Code being clear and unmistakable, according to which, a felony or misdemeanor, is to be deemed as if also expressly made
penal laws have retroactive effect in so far as they are favorable to in any new law at the time of its enactment, when said law is a
persons accused of a felony or misdemeanor, the courts of justice penal law, or one of a penal character, such as the prescription
of these Islands cannot, and must not, make any application of the contained in section 71 of Act No. 3030 here in question, which is
said rule and doctrine, but must, on the contrary, abide by the said of that nature, as above stated, and there is no necessity of making
precept and comply with it and carry it into effect, as hereinbefore in that law any provisions to that same effect. And this is the
stated, although no petition to that effect is made by the accused reason why in the case of Pardo de Tavera vs. Garcia Valdez, one of
that may be favored by those laws. And a provision for the the first cases in the Philippine Jurisprudence (1 Phil., 468) in
retroactivity of penal laws having, as it has, been made in the said which, the question, among others, was raised whether the
article in the terms already mentioned, it is evidently that when defendant, who was accused of grave insult defined and punished
the Philippine Legislature, the majority of whose members are in paragraph 1, article 458, of the Penal Code, should be punished
also members of the Philippine Bar, and, therefore, were aware of under said article, or under the provisions of Act No. 277, which is
77
the Libel Law and went into effect after the publication of the prescription, that is to say, the retroactivity of the law as to
libelous article and the institution of the criminal action, the court prescription, says:
held, as stated in the syllabus, that:
The modifications as to prescription introduced by the new
"The general rule that penal laws shall be retroactive in so far as law may affect the penal action or the penalty itself. With
they favor the accused has no application where the later law is respect to the former, it can be imagined that the new law
expressly made inapplicable to pending actions or existing cause has modified the rules as to the applicability or
of action," which clearly means that in order for a penal statute inapplicability of the prescription to a given crime, or the
favorable to the accused to have a retroactive effect, it is not necessary conditions for its effectiveness, or, finally, the
necessary that it be so expressly provided in the statues, or, to put time and period when it will have effect.
it in another way, that the provision declaring the retroactivity be
repeated therein, but that if the Legislature intends it not to have a The authors who had studied this question have reached
retroactive effect, it should expressly so state in the same statute. different conclusions, because some have considered
And the reason for it is obvious. For it being the general rule, prescription as a law of procedure or of form, while others
according to article 22 of the Penal Code, that penal laws have have regarded it as a substantive law, thereby admitting,
retroactive effect in so far as they favor the accused, said general therefore, the principle of vested right on the part of the
rule applies to all laws that may be enacted in the future, and if the offender.
Legislature intends to make an exception to the said rule, it should
expressly say so. Those who have considered the statutes of limitations as of
a formal or remedial nature have maintained the opinion
Now, the eminent professor of International Law, Mr. Fiore, in his that the new law must always be applied in all cases of
work on the Irretroactivity and Interpretation of Statutes, which is prescription where the period was already running at the
termed by various eminent jurists "a work full of juridical science," time of the enactment of the new law on the ground that all
after recognizing as a rule universally accepted by the courts and procedural laws must be deemed retroactive by nature.
expressly sanctioned by most of modern legislation that no penal Against this theory, however, it has been said that even
law can have any retroactive effect, that is, that no action or admitting the principle enunciated, the truth is that the
omission shall be held to be a crime, nor its author punished, culprit cannot be placed in a worse situation, as would be
except by virtue of a law in force at the time the act was the case if that theory is adopted, for although the
committed, advocates the retroactivity of a penal law favorable to prescription begun under the former law, fixing a shorter
the offender, not as a right of the latter, but founded on the very period, might have been completed, he would be subject to
principles on which the right of the State to punish and the criminal action under the new law prescribing a longer
combination of the penalty are based, and regards it not as an term, even if the provisions of the latter, concerning the
exception based on political consideration, but as a rule founded substance of the penal action, were not in force at the time
on principles of strict justice. of the commission of the crime. Again, setting aside the
theory of vested right on the part of the accused, as we have
The same author, on studying the question that may arise in case already done (for we cannot admit any vested right on the
the new land should have changed the rules regarding part of a private individual as against that which is
considered by the sovereign power as indispensable for
78
maintaining the juridical order), it can, however, be on the part of the offender, for we have already stated the
maintained that the application of the new law about the reason why no such vested right can be recognized as
prescription of the criminal action, when said law has against the penalty provided by law. On the contrary, we
extended the time of the prescription, is tantamount to admit this theory, but founded on the principles of justice
giving that penal law a retroactive effect, as regards the itself upon which the right to punish, considered as a
very substance of punishment, thus prejudicing the supreme right of sovereignty, rests.
offender and admitting, as to him, a right to punish, which,
on account of the longer period fixed in the new law, cannot In fact, where the new law has shortened the time of
be considered as based on any law in force and already prescription or established easier conditions for its
promulgated at the time of the commission of the crime. effectiveness with respect to a given crime, it is clear that
the reduction of the period made in the new law implies an
On the other hand, those who have considered prescription acknowledgment on the part of the sovereign power that
as a substantive law hold that the old law should always be the greater severity of the provision of the former statute
applied, the principal reason adduced by them in support of relative to the substance of the criminal action is unjust.
this opinion being that the accused must at all events suffer
the consequences of the situation created by himself by Consequently, if the sovereign power should enforce its
committing the crime. Against this opinion, it has been held, right under the former law it would be guilty of an
however, that the consideration of public policy, which inconsistency in view of its implied admission that the old
naturally prevails in matters of prescription, constitutes an law was too severe and consequently unjust. The necessity
obstacle to the invariable application of the old law, for if therefore of applying the less severe new law rests upon
the new law is less severe as regards prescription, the the principle that the sovereign power cannot exercise its
result would be that the culprit would be subject to the right to punish except only within those limits of justice
more severe law, which has been modified in harmony with which that sovereign power has established as being just
the more modern criteria sanctioned by the new law as and equitable at the time of exercising that right.
more in consonance with justice.
On the other hand, when the latter statute of limitations of
xxx xxx xxx criminal actions is more severe than the former, either as to
the applicability of the prescription itself, or as to the
To our mind, in accordance with the principles underlying requirements and duration of the action, the application of
all the foregoing theories regarding the retroactivity of a the said law to crime committed before its enactment must
less severe penal law, it must be admitted that also when be avoided not because the culprit has acquired any right to
the question is one of prescription must the new law be prevent said application, but for the reasons above set out.
considered retroactive if it is more favorable to the accused Indeed, on what ground can the culprit pretend to prevent
than the former law, and that contrariwise it should not be the sovereign power from doing what it has the right to do
so considered, if it is found to be more prejudicial. Although for the purpose of maintaining the juridical order? There
we are maintaining this opinion, we do not thereby accept exists, therefore, no reason in support of the theory of
the unjustified theory above set forth of those who believe vested right on the part of the culprit, but what must
that there must be admitted here the supposed vested right inevitably be admitted is that the sovereign power cannot,
79
without doing an injustice, apply the more severe legal prescription of the penalty is equivalent to the prescription
provision in the matter of prescription; and that that of the criminal action. (Fiore, pages 423-428.)
provision cannot justly be applied unless it was previously
promulgated, as even the right itself to punish cannot come Wharton gives a clear explanation of the distinction to be made
into existence except by virtue of a law duly promulgated between the construction of prescription in criminal actions and
and in force at the time that it was violated and the crime that of prescription in civil case in the paragraph above quoted
committed. The more severe law in matter of prescription from his book, and the grounds for the distinction are also clear
extends the field of criminal action and affects the and are not unknown to anybody, for, as Wharton says, they are
substance of the same, because it determines the basis and inherent in the origin and nature itself of the law of prescription,
the sphere of the right to punish. Now, can the sovereign which must be liberally construed in favor of the accused for if
power do all this without any law? Can it, without prescription in criminal matters is, as said author says, a benefit, a
committing an injustice, extend the effect of the new law to grace granted by the State, and a waiver of its right to prosecute
acts committed before its enactment? As the sovereign and an announcement that the crime is no longer the subject of
power cannot punish any act not expressly penalized by a prosecution, from the moment that the granting of that grace or
former law, nor punish with a more severe penalty any act benefit, or the making of such waiver, is known, the prosecution
performed before said penalty was prescribed and the law for the said crime and the punishment of the offender would be a
fixing it promulgated, so it cannot extend the criminal juridical contradiction.
action (that is, its right to punish) by virtue of a later law by
applying to acts completed before its promulgation the less But the opinions discussed by Fiore in his book abovementioned
favorable provisions therein made regarding prescription. are more in point, for he refers precisely to the prescription
In fact, in any case where reduction of the time of provided in a later statute the subject of which is the criminal
prescription formerly fixed is to be made under a new law, action or the penalty, that is, the prescription of the crime, as is the
or where harder conditions are required by said law for case now before us, or the prescription of the penalty, whether
effectively taking advantage of the prescription, the prescription be regarded as a law of procedure or of form, or as
sovereign power is exercising the right to punish acts substantive law.
committed prior to the promulgation of the new law, and it
is evident that no such right can be recognized in the After examining the different opinions of the writers on the
sovereign power. matter, Fiore has come, as seen from the above quotation, to the
conclusion that, whether the statute relative to prescription be
From all of the foregoing, we conclude that upon the very considered as of a procedural or formal, or substantive, nature, the
principles of justice, under which the less severe provisions new statute must be applied if it is less severe or more favorable to
of the new law must regulate all the elements of the the accused, but not if it is more prejudicial, notwithstanding the
criminal action, said less severe new law must also control general rule that all procedural laws are retroactive in regard to
the matter of prescription, provided that there is no final prescription. In view of the special motion filed by the accused on
and irrevocable judgment, and this rule holds good even if May 2, 1922, it does not matter and it is of no importance, so far as
the modifications of the statute have reference to the the question herein raised is concerned, whether the provision
prescription of the penalty, because in substance the contained in section 71 of Act No. 3030 be considered as of a
substantive, procedural, or adjective character, because applying
80
the principles above enunciated, the result is the same, and the the dictates of reason, justice and experience, the Legislature did
more severe law in the matter of prescription extends, as Fiore amend and reform it by the enactment of Act No. 3030, which
says, the field of the criminal action and affects the very substance supplied the deficiency found in the old law with regard to the
thereof, because it determines the basis and the sphere of the prescription of the crimes penalized therein, by providing in
rights to punish. section 71 of Act No. 3030 that those crimes, which year after their
commission, because their imprescriptibility was considered by
It may, perhaps, be argued that no term having been fixed in the the conscientious public opinion as juridically burdensome, and,
Election Law prior to Act No. 3030 for the prescription of the therefore, unjust, it is evident that the State, the Government and
offenses resulting from the violations thereof, and said Act No. the courts of justice representing it, cannot, without committing a
3030 having fixed at one year the period for the prescription, the gross injustice, exercise the right to prosecute and punish the
former law is more lenient, less severe, and more favorable to the violator of the old law under the conditions required by the law
persons accused of those offenses than the latter. Such an and outside of the limits now regarded by the sovereign power,
argument, however, is absolutely erroneous and untenable, if it is that is to say, the Legislature, as just by the enactment of said Act
borne in mind that no period of prescription having been fixed in No. 3030, which took effect on March 9, 1922. And such injustice
the former law, those offense were imprescriptible, and the would be more apparent still, if the violators of the old Election
offender could be prosecuted and punished at any time and Law, which was amended by Act No. 3030, would be prosecuted
indefinitely, even ten, twenty, or more years after the commission and convicted five, ten, twenty, or more years after the said
thereof, whereas the new law, that is, Act No. 3030 in providing violations when the proof of their innocence may not have been
the period of one year for the prescription, has, in effect, shortened kept by them, while violators of Act No. 3030, who may not have
the time of prescription fixed in the old law by virtue of the silence been prosecuted within the one year fixed by section 71 aforesaid,
thereof, reducing it to one year and has established less difficult would be free from being prosecuted and punished for the crimes
conditions for the application of the same as regards those committed by them. And this injustice, which is so contrary to
offenses, which is evidently more favorable and lenient to the conscientious public opinion and repugnant to humane
violators of the said former law, and, as Fiore says in one of the sentiments, would necessarily result, if the provisions of section
paragraph above quoted from his book, the reduction made by the 71 of Act No. 3030, which is now in force, are not immediately
new law implies a recognition on the part of the sovereign power applied right at this stage of the case in favor of the herein
that the greater severity of the former law, as regards the accused, by taking up first the special motion of the accused filed
substance of the criminal action, is unjust, and it would contradict on May 2d of this year, before the petition for reconsideration and
itself if it would attempt to enforce its right under the conditions of re-hearing hereinbefore mentioned, or, better, by ignoring the said
the former law which has already been regarded by the petition and disposing of the case by deciding the motion of May
conscientious public opinion as juridically burdensome, and, 2d, wherein the accused invoked the prescription provided in the
therefore, unjust, and the sovereign power cannot exercise the said section, for the reason that this action was commenced on
right to punish except within the limits regarded by it as just at the December 20, 1920, one year and a half after the commission of
time of exercising it. the offense resulting from the violation of the Election Law with
which they are charged.
If, therefore, in reviewing the former Election Law contained in the
two chapters of the Administrative Code hereinbefore mentioned, In view of the foregoing, we find the said crime to have prescribed,
for the purpose of amending and reforming it in accordance with and setting aside the decision of this court published on the 31st of
81
March of this year, the present action is dismissed with all the September 25, 1990.2 On January 19, 1994, they were blessed with
costs de oficio, and the bond given by the accused for their a son named Roderigo Norjo Van Wilsem, who at the time of the
provisional release is cancelled, which release is hereby declared filing of the instant petition was sixteen (16) years of age. 3
final. So ordered.
Unfortunately, their marriage bond ended on July 19, 1995 by
Street, Avanceña, Villamor, and Romualdez, JJ., concur. virtue of a Divorce Decree issued by the appropriate Court of
Holland.4 At that time, their son was only eighteen (18) months
Republic of the Philippines old.5 Thereafter, petitioner and her son came home to the
SUPREME COURT Philippines.6
Manila
According to petitioner, respondent made a promise to provide
THIRD DIVISION monthly support to their son in the amount of Two Hundred Fifty
(250) Guildene (which is equivalent to Php17,500.00 more or
G.R. No. 193707 December 10, 2014 less).7 However, since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son, Roderigo. 8
NORMA A. DEL SOCORRO, for and in behalf of her minor child
RODERIGO NORJO VAN WILSEM, Petitioner, Not long thereafter, respondent cameto the Philippines and
vs. remarried in Pinamungahan, Cebu, and since then, have been
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent. residing thereat.9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay Tajao,
DECISION Municipality of Pinamungahan, Cebu City. 10 To date, all the parties,
including their son, Roderigo, are presently living in Cebu City. 11
PERALTA, J.:
On August 28, 2009, petitioner, through her counsel, sent a letter
Before the Court is a petition for review on certiorari under Rule demanding for support from respondent. However, respondent
45 of the Rules of Court seeking to reverse and set aside the refused to receive the letter.12
Orders1 dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of Cebu City (RTC-Cebu), Because of the foregoing circumstances, petitioner filed a
which dismissed the criminal case entitled People of the complaint affidavit with the Provincial Prosecutor of Cebu City
Philippines v. Ernst Johan Brinkman Van Wilsem, docketed as against respondent for violation of Section 5, paragraph E(2) of
Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) R.A. No. 9262 for the latter’s unjust refusal to support his minor
No. 9262, otherwise known as the Anti-Violence Against Women child with petitioner.13 Respondent submitted his counter-affidavit
and Their Children Act of 2004. thereto, to which petitioner also submitted her reply-
affidavit.14 Thereafter, the Provincial Prosecutor of Cebu City
The following facts are culled from the records: issued a Resolution recommending the filing of an information for
the crime charged against herein respondent.
Petitioner Norma A. Del Socorro and respondent Ernst Johan
Brinkman Van Wilsem contracted marriage in Holland on
82
The information, which was filed with the RTC-Cebu and raffled to SO ORDERED.
Branch 20 thereof, states that:
Cebu City, Philippines, February 19, 2010. 22
That sometime in the year 1995 and up to the present, more or
less, in the Municipality of Minglanilla, Province of Cebu, Thereafter, petitioner filed her Motion for Reconsideration thereto
Philippines, and within the jurisdiction of this Honorable Court, reiterating respondent’s obligation to support their child under
the above-named accused, did then and there wilfully, unlawfully Article 19523 of the Family Code, thus, failure to do so makes him
and deliberately deprive, refuse and still continue to deprive his liable under R.A. No. 9262 which "equally applies to all persons in
son RODERIGO NORJO VAN WILSEM, a fourteen (14) year old the Philippines who are obliged to support their minor children
minor, of financial support legally due him, resulting in economic regardless of the obligor’s nationality."24
abuse to the victim. CONTRARY TO LAW.15
On September 1, 2010, the lower court issued an Order 25 denying
Upon motion and after notice and hearing, the RTC-Cebu issued a petitioner’s Motion for Reconsideration and reiterating its
Hold Departure Order against respondent.16 Consequently, previous ruling. Thus:
respondent was arrested and, subsequently, posted
bail.17 Petitioner also filed a Motion/Application of Permanent x x x The arguments therein presented are basically a rehash of
Protection Order to which respondent filed his those advanced earlier in the memorandum of the prosecution.
Opposition.18 Pending the resolution thereof, respondent was Thus, the court hereby reiterates its ruling that since the accused
arraigned.19 Subsequently, without the RTC-Cebu having resolved is a foreign national he is not subject to our national law (The
the application of the protection order, respondent filed a Motion Family Code) in regard to a parent’s duty and obligation to
to Dismiss on the ground of: (1) lack of jurisdiction over the givesupport to his child. Consequently, he cannot be charged of
offense charged; and (2) prescription of the crime charged. 20 violating R.A. 9262 for his alleged failure to support his child.
Unless it is conclusively established that R.A. 9262 applies to a
On February 19, 2010, the RTC-Cebu issued the herein assailed foreigner who fails to give support tohis child, notwithstanding
Order,21 dismissing the instant criminal case against respondent that he is not bound by our domestic law which mandates a parent
on the ground that the facts charged in the information do not to give such support, it is the considered opinion of the court that
constitute an offense with respect to the respondent who is an no prima faciecase exists against the accused herein, hence, the
alien, the dispositive part of which states: case should be dismissed.
WHEREFORE, the Court finds that the facts charged in the WHEREFORE, the motion for reconsideration is hereby DENIED
information do not constitute an offense with respect to the for lack of merit.
accused, he being an alien, and accordingly, orders this case
DISMISSED. SO ORDERED.
The bail bond posted by accused Ernst Johan Brinkman Van Cebu City, Philippines, September 1, 2010. 26
Wilsem for his provisional liberty is hereby cancelled (sic) and
ordered released. Hence, the present Petition for Review on Certiorari raising the
following issues:
83
1. Whether or not a foreign national has an obligation to matter. The resolution of the issue must rest solely on what the
support his minor child under Philippine law; and law provides on the given set of circumstances.29
2. Whether or not a foreign national can be held criminally Indeed, the issues submitted to us for resolution involve questions
liable under R.A. No. 9262 for his unjustified failure to of law – the response thereto concerns the correct application of
support his minor child.27 law and jurisprudence on a given set of facts, i.e.,whether or not a
foreign national has an obligation to support his minor child under
At the outset, let it be emphasized that We are taking cognizance of Philippine law; and whether or not he can be held criminally liable
the instant petition despite the fact that the same was directly under R.A. No. 9262 for his unjustified failure to do so.
lodged with the Supreme Court, consistent with the ruling in
Republic v. Sunvar Realty Development Corporation, 28 which lays It cannot be negated, moreover, that the instant petition highlights
down the instances when a ruling of the trial court may be brought a novel question of law concerning the liability of a foreign
on appeal directly to the Supreme Court without violating the national who allegedly commits acts and omissions punishable
doctrine of hierarchy of courts, to wit: under special criminal laws, specifically in relation to family rights
and duties. The inimitability of the factual milieu of the present
x x x Nevertheless, the Rules do not prohibit any of the parties case, therefore, deserves a definitive ruling by this Court, which
from filing a Rule 45 Petition with this Court, in case only will eventually serve as a guidepost for future cases. Furthermore,
questions of law are raised or involved. This latter situation was dismissing the instant petition and remanding the same to the CA
one that petitioners found themselves in when they filed the would only waste the time, effort and resources of the courts.
instant Petition to raise only questions of law. In Republic v. Thus, in the present case, considerations of efficiency and
Malabanan, the Court clarified the three modes of appeal from economy in the administration of justice should prevail over the
decisions of the RTC, to wit: (1) by ordinary appeal or appeal by observance of the hierarchy of courts.
writ of error under Rule 41, whereby judgment was rendered in a
civil or criminal action by the RTC in the exercise of its original Now, on the matter of the substantive issues, We find the petition
jurisdiction; (2) by a petition for review under Rule 42, whereby meritorious. Nonetheless, we do not fully agree with petitioner’s
judgment was rendered by the RTC in the exercise of its appellate contentions.
jurisdiction; and (3) by a petition for review on certiorari before
the Supreme Court under Rule 45. "The first mode of appeal is To determine whether or not a person is criminally liable under
taken to the [Court of Appeals] on questions of fact or mixed R.A. No. 9262, it is imperative that the legal obligation to support
questions of fact and law. The second mode of appeal is brought to exists.
the CA on questions of fact, of law, or mixed questions of fact and
law. The third mode of appealis elevated to the Supreme Court Petitioner invokes Article 19530 of the Family Code, which
only on questions of law." (Emphasis supplied) provides the parent’s obligation to support his child. Petitioner
contends that notwithstanding the existence of a divorce decree
There is a question of law when the issue does not call for an issued in relation to Article 26 of the Family Code, 31 respondent is
examination of the probative value of the evidence presented or of not excused from complying with his obligation to support his
the truth or falsehood of the facts being admitted, and the doubt minor child with petitioner.
concerns the correct application of law and jurisprudence on the
84
On the other hand, respondent contends that there is no sufficient In international law, the party who wants to have a foreign law
and clear basis presented by petitioner that she, as well as her applied to a dispute or case has the burden of proving the foreign
minor son, are entitled to financial support. 32 Respondent also law.40 In the present case, respondent hastily concludes that being
added that by reason of the Divorce Decree, he is not obligated a national of the Netherlands, he is governed by such laws on the
topetitioner for any financial support.33 matter of provision of and capacity to support. 41 While respondent
pleaded the laws of the Netherlands in advancing his position that
On this point, we agree with respondent that petitioner cannot he is not obliged to support his son, he never proved the same.
rely on Article 19534 of the New Civil Code in demanding support
from respondent, who is a foreign citizen, since Article 15 35 of the It is incumbent upon respondent to plead and prove that the
New Civil Code stresses the principle of nationality. In other national law of the Netherlands does not impose upon the parents
words, insofar as Philippine laws are concerned, specifically the the obligation to support their child (either before, during or after
provisions of the Family Code on support, the same only applies to the issuance of a divorce decree), because Llorente v. Court of
Filipino citizens. By analogy, the same principle applies to Appeals,42 has already enunciated that:
foreigners such that they are governed by their national law with
respect to family rights and duties.36 True, foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to takejudicial notice of them. Like
The obligation to give support to a child is a matter that falls under any other fact, they must be alleged and proved.43
family rights and duties. Since the respondent is a citizen of
Holland or the Netherlands, we agree with the RTC-Cebu that he is In view of respondent’s failure to prove the national law of the
subject to the laws of his country, not to Philippinelaw, as to Netherlands in his favor, the doctrine of processual presumption
whether he is obliged to give support to his child, as well as the shall govern. Under this doctrine, if the foreign law involved is not
consequences of his failure to do so.37 properly pleaded and proved, our courts will presume that the
foreign law is the same as our local or domestic or internal
In the case of Vivo v. Cloribel,38 the Court held that – law.44 Thus, since the law of the Netherlands as regards the
obligation to support has not been properly pleaded and proved in
Furthermore, being still aliens, they are not in position to invoke the instant case, it is presumed to be the same with Philippine law,
the provisions of the Civil Code of the Philippines, for that Code which enforces the obligation of parents to support their children
cleaves to the principle that family rights and duties are governed and penalizing the non-compliance therewith.
by their personal law, i.e.,the laws of the nation to which they
belong even when staying in a foreign country (cf. Civil Code, Moreover, while in Pilapil v. Ibay-Somera, 45 the Court held that a
Article 15).39 divorce obtained in a foreign land as well as its legal effects may be
recognized in the Philippines in view of the nationality principle
It cannot be gainsaid, therefore, that the respondent is not obliged on the matter of status of persons, the Divorce Covenant presented
to support petitioner’s son under Article195 of the Family Code as by respondent does not completely show that he is notliable to
a consequence of the Divorce Covenant obtained in Holland. This give support to his son after the divorce decree was issued.
does not, however, mean that respondent is not obliged to support Emphasis is placed on petitioner’s allegation that under the
petitioner’s son altogether. second page of the aforesaid covenant, respondent’s obligation to
85
support his child is specifically stated, 46 which was not disputed by undeniable injustice to the citizens or residents of the forum. To
respondent. give justice is the most important function of law; hence, a law, or
judgment or contract that is obviously unjust negates the
We likewise agree with petitioner that notwithstanding that the fundamental principles of Conflict of Laws.48
national law of respondent states that parents have no obligation
to support their children or that such obligation is not punishable Applying the foregoing, even if the laws of the Netherlands neither
by law, said law would still not find applicability,in light of the enforce a parent’s obligation to support his child nor penalize the
ruling in Bank of America, NT and SA v. American Realty noncompliance therewith, such obligation is still duly enforceable
Corporation,47 to wit: in the Philippines because it would be of great injustice to the child
to be denied of financial support when the latter is entitled
In the instant case, assuming arguendo that the English Law on the thereto.
matter were properly pleaded and proved in accordance with
Section 24, Rule 132 of the Rules of Court and the jurisprudence We emphasize, however, that as to petitioner herself, respondent
laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would is no longer liable to support his former wife, in consonance with
still not find applicability. the ruling in San Luis v. San Luis,49 to wit:
Thus, when the foreign law, judgment or contract is contrary to a As to the effect of the divorce on the Filipino wife, the Court ruled
sound and established public policy of the forum, the said foreign that she should no longerbe considered marriedto the alien
law, judgment or order shall not be applied. spouse. Further, she should not be required to perform her marital
duties and obligations. It held:
Additionally, prohibitive laws concerning persons, their acts or
property, and those which have for their object public order, To maintain, as private respondent does, that, under our laws,
public policy and good customs shall not be rendered ineffective petitioner has to be considered still married to private respondent
by laws or judgments promulgated, or by determinations or and still subject to a wife's obligations under Article 109, et. seq. of
conventions agreed upon in a foreign country. the Civil Code cannot be just. Petitioner should not be obliged to
live together with, observe respect and fidelity, and render
The public policy sought to be protected in the instant case is the support to private respondent. The latter should not continue to
principle imbedded in our jurisdiction proscribing the splitting up be one of her heirs with possible rights to conjugal property. She
of a single cause of action. should not be discriminated against in her own country if the ends
of justice are to be served. (Emphasis added)50
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
Based on the foregoing legal precepts, we find that respondent
— may be made liable under Section 5(e) and (i) of R.A. No. 9262 for
unjustly refusing or failing to give support topetitioner’s son, to
If two or more suits are instituted on the basis of the same cause of wit:
action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others. Moreover,
foreign law should not be applied when its application would work
86
SECTION 5. Acts of Violence Against Women and Their Children.- that: "[p]enal laws and those of public security and safety shall be
The crime of violence against women and their children is obligatory upon all who live and sojourn in Philippine territory,
committed through any of the following acts: subject to the principle of public international law and to treaty
stipulations." On this score, it is indisputable that the alleged
xxxx continuing acts of respondent in refusing to support his child with
petitioner is committed here in the Philippines as all of the parties
(e) Attempting to compel or compelling the woman or her child to herein are residents of the Province of Cebu City. As such, our
engage in conduct which the woman or her child has the right to courts have territorial jurisdiction over the offense charged
desist from or desist from conduct which the woman or her child against respondent. It is likewise irrefutable that jurisdiction over
has the right to engage in, or attempting to restrict or restricting the respondent was acquired upon his arrest.
the woman's or her child's freedom of movement or conduct by
force or threat of force, physical or other harm or threat of Finally, we do not agree with respondent’s argument that granting,
physical or other harm, or intimidation directed against the but not admitting, that there is a legal basis for charging violation
woman or child. This shall include, butnot limited to, the following of R.A. No. 9262 in the instant case, the criminal liability has been
acts committed with the purpose or effect of controlling or extinguished on the ground of prescription of crime 52 under
restricting the woman's or her child's movement or conduct: Section 24 of R.A. No. 9262, which provides that:
xxxx SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a)
to 5(f) shall prescribe in twenty (20) years. Acts falling under
(2) Depriving or threatening to deprive the woman or her children Sections 5(g) to 5(I) shall prescribe in ten (10) years.
of financial support legally due her or her family, or deliberately
providing the woman's children insufficient financial support; x x x The act of denying support to a child under Section 5(e)(2) and (i)
x of R.A. No. 9262 is a continuing offense, 53 which started in 1995
but is still ongoing at present. Accordingly, the crime charged in
(i) Causing mental or emotional anguish, public ridicule or the instant case has clearly not prescribed.
humiliation to the woman or her child, including, but not limited
to, repeated verbal and emotional abuse, and denial of financial Given, however, that the issue on whether respondent has
support or custody of minor childrenof access to the woman's provided support to petitioner’s child calls for an examination of
child/children.51 the probative value of the evidence presented, and the truth and
falsehood of facts being admitted, we hereby remand the
Under the aforesaid special law, the deprivation or denial of determination of this issue to the RTC-Cebu which has jurisdiction
financial support to the child is considered anact of violence over the case.
against women and children.
WHEREFORE, the petition is GRANTED. The Orders dated
In addition, considering that respondent is currently living in the February 19, 2010 and September 1, 2010, respectively, of the
Philippines, we find strength in petitioner’s claim that the Regional Trial Court of the City of Cebu are hereby REVERSED and
Territoriality Principle in criminal law, in relation to Article 14 of SET ASIDE. The case is REMANDED to the same court to conduct
the New Civil Code, applies to the instant case, which provides further proceedings based on the merits of the case.
87
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA*

BIENVENIDO L. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.

Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the

Division Chairperson's Attestation, I certify that the conclusions in
the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P.A. SERENO

Chief Justice
88

Crim Cases General Principles

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Crim Cases General Principles

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Criminal Law 1 Cases (General Principles)

Republic of the Philippines The CA summarized the factual antecedents as follows:

The CA explained that even if it were to subscribe to the Ruling

In addition, the accused shall pay to the Government the total

SEC. 4. Amendment of complaint or information.- If the motion to ATTESTATION

Pursuant to Section 13, Article VIII of the Constitution, and the

MARIA LOURDES P. A. SERENO

WHEREFORE, the consolidated petitions are GRANTED. The

FIRST DIVISION The petition is not impressed with merit.

Fourth, under the Vienna Convention on Diplomatic Relations, a

Finally, on the contention that there was no preliminary

On July 26, 2003, President Gloria Macapagal Arroyo received

SANDOVAL-GUTIERREZ, J.: About noontime of the same day, President Arroyo issued

Articles 54 to 70: Art. 70. Arrest or Confinement.

Art. 54. Fraudulent Enlistment. Articles 72 to 92:

Art. 56. False Muster. Art. 73. Report of Prisoners Received.

Art. 59. Desertion. Art. 76. Misbehavior Before the Enemy.

Art. 61. Entertaining a Deserter. Art. 78. Improper Use of Countersign.

Art. 62. Absence Without Leave. Art. 79. Forcing a Safeguard.

With respect to the issue of prescription raised by petitioners in Chief Justice

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

MA. ALICIA AUSTRIA-MARTINEZ ENATO C. CORONA

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

ADOLFO S. AZCUNA DANTE O. TINGA

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

PRESBITERO J. VELASCO, JR.

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

effect of section 71 of Act No. 3030, which provides for a period of

The Election Law is contained in Chapter 18 and parts of Chapter

OSTRAND, J.: Previously to the enactment of Act No. 3030 there was no

PRESBITERO J. VELASCO, JR.

MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA*

I attest that the conclusions in the above Decision had been

PRESBITERO J. VELASCO, JR.

Pursuant to Section 13, Article VIII of the Constitution and the

MARIA LOURDES P.A. SERENO

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