PAGE 2

C. Prospective

1. Gumabon v. Director of Prisons, 37 SCRA 420 (1971)

EN BANC

G.R. No. L-30026 January 30, 1971

MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and

PATERNO PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.

Jose W. Diokno for petitioners.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and
Solicitor Eduardo C. Abaya for respondent.

FERNANDO, J.:

Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release
from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other
crimes, they would invoke the People v. Hernandez1 doctrine, negating the existence of such an
offense, a ruling that unfortunately for them was not handed down until after their convictions had become
final. Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v.
Director of Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer
given was in the negative. Petitioners plead for a new look on the matter. They would premise their stand
on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal
provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting
in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the
explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of
their application a final sentence has been rendered "and the convict is serving the same."4 These
arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far as to
overrule Pomeroy.

Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion
perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping.
Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the
complex crime of rebellion with multiple murder and other offenses, and were similarly made to
suffer the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the
third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex
crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized
with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the
above convictions. Each of them has served more than 13 years.5
Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the information against
the accused in that case for rebellion complexed with murder, arson and robbery was not warranted
under Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-
decided case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the
plea of the Solicitor General for the abandonment of such doctrine. It is the contention of each of the
petitioners that he has served, in the light of the above, more than the maximum penalty that could have
been imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9

The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus
proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if
necessary, discarded. We can resolve the present petition without doing so. The plea there made
was unconvincing, there being a failure to invoke the contentions now pressed vigorously by their
counsel, Attorney Jose W. Diokno, as to the existence of a denial of a constitutional right that would
suffice to raise a serious jurisdictional question and the retroactive effect to be given a judicial
decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal
Code. To repeat, these two grounds carry weight. We have to grant this petition.

1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the
circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be
avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ
imposes on judges the grave responsibility of ascertaining whether there is any legal justification for
a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby
cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period
provided for by law. Any deviation from the legal norms call for the termination of the imprisonment.

Rightly then could Chafee refer to the writ as "the most important human rights provision" in the
fundamental law.10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to
personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against
arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel
made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is
assured.

A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled
with its limitations may be detected in the opinions of former Chief Justices
Arellano, 15 Avanceña, 16 Abad Santos, 17Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to
Justice Malcolm's lot, however to emphasize quite a few times the breadth of its amplitude and of its
reach. In Villavicencio v. Lukban, 21 the remedy came in handy to challenge the validity of the order of the
then respondent Mayor of Manila who, for the best of reasons but without legal justification, ordered the
transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the writ of
habeas corpus as having been devised and existing "as a speedy and effectual remedy to relieve persons
from unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude
freedom of action is sufficient." 22

The liberality with which the judiciary is to construe habeas corpus petitions even if presented in
pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court,
again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally
defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the
case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v.
Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a
disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if
"restrained of his liberty, by habeas corpus to obtain his
freedom." 26

So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ
of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the
liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from an
1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for centuries
esteemed the best and only sufficient defense of personal freedom." The passing of the years has only
served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas
spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope
and flexibility of the writ — its capacity to reach all manner of illegal detention — its ability to cut through
barriers of form and procedural mazes — have always been emphasized and jealously guarded by courts
and lawmakers. The very nature of the writ demands that it be administered with the initiative and
flexibility essential to insure that miscarriages of justice within its reach are surfaced and
corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and
efficacious writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is
his adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms
and goes to the very tissue of the structure."

2. Where, however, the detention complained of finds its origin in what has been judicially ordained,
the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person
alleged to be restrained of his liberty is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment, or make the order," the writ does not
lie. 31 That principle dates back to 1902, 32 when this Court announced that habeas corpus was unavailing
where the person detained was in the custody of an officer under process issued by a court or magistrate.
This is understandable, as during the time the Philippines was under American rule, there was
necessarily an adherence to authoritative doctrines of constitutional law there followed.

One such principle is the requirement that there be a finding of jurisdictional defect. As summarized
by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or
any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner
under conviction and sentence of another court is the want of jurisdiction in such court over the
person or the cause, or some other matter rendering its proceedings void." 33

There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a
constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34

3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal
protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of
First Instance for the very same rebellion for which Hernandez, Geronimo, and others were
convicted. The law under which they were convicted is the very same law under which the latter
were convicted. It had not and has not been changed. For the same crime, committed under the
same law, how can we, in conscience, allow petitioners to suffer life imprisonment, while others can
suffer only prision mayor?" 35

They would thus stress that, contrary to the mandate of equal protection, people similarly situated
were not similarly dealt with. What is required under this required constitutional guarantee is the
uniform operation of legal norms so that all persons under similar circumstances would be accorded
the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a
recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under circumstances, which if not identical are
analogous. If law be looked upon in terms of burden or charges, those that fall within a class should
be treated in the same fashion, whatever restrictions cast on some in the group equally binding on
the rest." 36

The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the
twelve-year period when such is the maximum length of imprisonment in accordance with our
controlling doctrine, when others similarly convicted have been freed, is fraught with implications at
war with equal protection. That is not to give it life. On the contrary, it would render it nugatory.
Otherwise, what would happen is that for an identical offense, the only distinction lying in the finality
of the conviction of one being before the Hernandez ruling and the other after, a person duly
sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the
petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be
made to languish in jail for perhaps the rest of their natural lives when the leaders had been duly
considered as having paid their penalty to society, and freed. Such a deplorable result is to be
avoided.

4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised
Penal Code which requires that penal judgment be given a retroactive effect. In support of their
contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v.
Moran, 40 and People v. Parel. 41 While reference in the above provision is made not to judicial decisions
but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to
deny its application to a case like the present. Such a belief has a firmer foundation. As was previously
noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-known dictum of
Bishop Hoadley:

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the
law-giver to all intents and purposes, and not the person who first thought or spoke them." It is to be
admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman
Gray, were much impressed with the truth and the soundness of the above observations. We do not have
to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code
allow, if they do not call for, a retroactive application.

It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had
served the full term for which they could have been legally committed, is habeas corpus the
appropriate remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine
was announced in Cruz v. Director of Prisons. 45Thus: "The courts uniformly hold that where a sentence
imposes punishment in excess of the power of the court to impose, such sentence is void as to the
excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains
the proposition that such a sentence is void only as to the excess imposed in case the parts are
separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas
corpus unless he has served out so much of the sentence as was valid." 46 There is a reiteration of such a
principle in Director v. Director of Prisons 47where it was explicitly announced by this Court "that the only
means of giving retroactive effect to a penal provision favorable to the accused ... is the writ of habeas
corpus." 48 While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the
remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the
accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus
successfully sustained the burden of justifying their release.

WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be
forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.

Concepcion, C.J., concurs in the result.

Castro and Makasiar, JJ., took no part.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with
multiple murder and other crimes, and have served or are now entering into their 17th year of
imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life sentences for the same charge
by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision
mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down
in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common
crimes since such common crimes "assume the political complexion of the main crime of which they are
mere ingredients and consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the
State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has
given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the
members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons
in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want
of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time
of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the
doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the test
of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot
now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion does not
exist in our Revised Penal Code. No prosecutor would now file an information for "complexed" rebellion
but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal Code, and
even if such an information for "complexed" rebellion to be so filed, the trial courts would be bound to
quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised
Penal Code that:
 ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal, as
this term is defined in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is
serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their conviction and
they were accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12
years imprisonment; having served out the maximum penalty of 12 years now imposed by the
amended statute, they would be entitled to invoke the retroactive effect of the statute favoring
them. The only difference between the situation given and the present case is that here it is this
lâwphî1.ñèt

Supreme Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down
the doctrine since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners
should therefore be now equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life imprisonment,
but the Court has subsequently judicially determined it not be so and that the maximum imposable
penalty is prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later
judicial declaration, just as if a statutory amendment had been enacted—not because the sentencing
court had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should issue, since as
held in Directo vs. Director of Prisons,7 "the only means of giving retroactive effect to a penal provision
favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas
corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized
that relief byhabeas corpus may be properly sought in cases of imposition of excessive penalty, such
that the part of the sentence beyond or in excess of the power of the court to impose is held void, the
applicant having already served out the entire part of the sentence within the court's power. 8 As
pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised
Penal Code ... extends its benefits even to convicts serving sentence, and the only legal remedy open to
them to make use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon
them under the former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had
jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum — and lesser — sentence
of prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty
that the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much
more than the maximum imposable penalty, the excess of the sentence imposed upon them over the
imposable maximum of twelve years of prision mayor cannot but be declared illegal and they should
now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of
certain election offenses (fixing the same at one year after commission) were more favorable to the
accused than those of the pre-existing law and were therefore retroactive as to the same offenses
committed before the enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law (which amended the pre-
existing Election Law) and could not be given retroactive effect, the Court found "that practically all of the
offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the
only difference being that the penalties have been increased." Holding that the retroactivity clause of
Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in
the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a
statute is enacted defining the crime of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined in the new statute shall be life
imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would anyone
then maintain that the death penalty might still be imposed for murder committed before the new statute
was enacted?"

The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment
of a law statute describing the crime in the same language and imposing a lesser penalty, but the
settled doctrine of this Court that there does not exist in our legal system the complex crime of
rebellion of which the petitioners stand convicted, "since rebellion cannot form a complex with
common crimes, because the latter are either absorbed by the rebellion itself or are punishable as
independent offenses." 11 Petitioners here have been convicted for the very same rebellion and under
the very same law for which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders
have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them, notwithstanding their already having served
out much more than the maximum penalty of twelve years of prision mayor imposable upon them. The
fact that the legal doubts about the non-existence of the crime of "complexed" rebellion were cleared up
only in 1956 after they had already been convicted and were serving their sentences does not make the
excess in the penalty imposed upon them beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of
the law of the case, have no application here. These salutary rules decree that rights of parties
having been decisively settled and determined by final judgment of the court of competent
jurisdiction with the party adversely affected having had the opportunity to raise in the case all
relevant questions, the decision becomes the law of the case, and vested rights would be impaired,
judicial chaos and disorder ensue and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply
because in another and subsequent case, this Court adopted a new or different construction of the
law under which a different result of the adjudicated case might have been obtained. Here, the whole
question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised
Penal Code and the maximum penalty imposable therefor under section 135 of the same Code. As
this Court had ruled since 1956--which is now settled doctrine—that only the crime of simple
rebellion exists in our legal system for which the maximum penalty of prision mayor may be
imposed, the excess of the life sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents
a clear case of an excess in penalty imposed beyond twelve years of prision mayor which has
become illegal by virtue of this Court's settled doctrine that the crime of rebellion cannot be
complexed with other common crimes. On this ground, as well as on the further and more
fundamental ground that to hold them liable to continue serving life sentences for a crime that the
law—at the time of their conviction as well as now—punishes only with prision mayor which they
have more than fully served, would be to deny them their constitutional rights of due process and
equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional
and the petition for habeas corpus should be granted and petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring and dissenting:

The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion with
multiple murder and other crimes, and have served or are now entering into their 17th year of
imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction
detention). The leaders of the rebellion who were meted out death and life sentences for the same charge
by the Court of First Instance of Manila had their sentences reduced last near to ten years of prision
mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first laid down
in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other common
crimes since such common crimes "assume the political complexion of the main crime of which they are
mere ingredients and consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the
State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has
given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the
members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life sentences.

I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons
in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want
of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the time
of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was) still
upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with the
doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood the test
of time 6 and having been just last year unreservedly reaffirmed without a single dissent in Lava, it cannot
now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion does not
exist in our Revised Penal Code. No prosecutor would now file an information for "complexed" rebellion
but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal Code, and
even if such an information for "complexed" rebellion to be so filed, the trial courts would be bound to
quash such information as not charging an offense on the strength of Lava and Hernandez.

Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised
Penal Code that:

ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony, who is not a habitual criminal, as
this term is defined in rule 5 of article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is
serving the same.

in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system of the Philippines."

The situation of petitioners is no different than it would be if, say, the penalty of reclusion
perpetua were imposed by statute for the crime of simple rebellion at the time of their conviction and
they were accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12
years imprisonment; having served out the maximum penalty of 12 years now imposed by the
amended statute, they would be entitled to invoke the retroactive effect of the statute favoring them.
The only difference between the situation given and the present case is that here it is this Supreme
Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the
doctrine since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners
should therefore be now equally entitled to the retroactive favorable effect of such doctrine.

The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life imprisonment,
but the Court has subsequently judicially determined it not be so and that the maximum imposable
penalty is prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later
judicial declaration, just as if a statutory amendment had been enacted—not because the sentencing
court had no jurisdiction or is now ousted of jurisdiction. The writ prayed for should issue, since as
held in Directo vs. Director of Prisons,7 "the only means of giving retroactive effect to a penal provision
favorable to the accused where the trial judge has lost jurisdiction over the case, is the writ of habeas
corpus."

The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized
that relief byhabeas corpus may be properly sought in cases of imposition of excessive penalty, such
that the part of the sentence beyond or in excess of the power of the court to impose is held void, the
applicant having already served out the entire part of the sentence within the court's power. 8 As
pointed out by the Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised
Penal Code ... extends its benefits even to convicts serving sentence, and the only legal remedy open to
them to make use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon
them under the former penal law was decreased by the revised code, the excess has become illegal."

Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had
jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum — and lesser — sentence
of prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty
that the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much
more than the maximum imposable penalty, the excess of the sentence imposed upon them over the
imposable maximum of twelve years of prision mayor cannot but be declared illegal and they should
now be set free.

In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of
certain election offenses (fixing the same at one year after commission) were more favorable to the
accused than those of the pre-existing law and were therefore retroactive as to the same offenses
committed before the enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law (which amended the pre-
existing Election Law) and could not be given retroactive effect, the Court found "that practically all of the
offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the
only difference being that the penalties have been increased." Holding that the retroactivity clause of
Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in
the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a
statute is enacted defining the crime of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined in the new statute shall be life
imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would anyone
then maintain that the death penalty might still be imposed for murder committed before the new statute
was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment
of a law statute describing the crime in the same language and imposing a lesser penalty, but the
settled doctrine of this Court that there does not exist in our legal system the complex crime of
rebellion of which the petitioners stand convicted, "since rebellion cannot form a complex with
common crimes, because the latter are either absorbed by the rebellion itself or are punishable as
independent offenses." 11 Petitioners here have been convicted for the very same rebellion and under
the very same law for which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders
have since been freed after serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them, notwithstanding their already having served
out much more than the maximum penalty of twelve years of prision mayor imposable upon them. The
fact that the legal doubts about the non-existence of the crime of "complexed" rebellion were cleared up
only in 1956 after they had already been convicted and were serving their sentences does not make the
excess in the penalty imposed upon them beyond the maximum of twelve years any less illegal.

The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of
the law of the case, have no application here. These salutary rules decree that rights of parties
having been decisively settled and determined by final judgment of the court of competent
jurisdiction with the party adversely affected having had the opportunity to raise in the case all
relevant questions, the decision becomes the law of the case, and vested rights would be impaired,
judicial chaos and disorder ensue and litigation would be never-ending and would become more
intolerable than the wrongs it is intended to redress, should an adjudicated case be reopened simply
because in another and subsequent case, this Court adopted a new or different construction of the
law under which a different result of the adjudicated case might have been obtained. Here, the whole
question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised
Penal Code and the maximum penalty imposable therefor under section 135 of the same Code. As
this Court had ruled since 1956--which is now settled doctrine—that only the crime of simple
rebellion exists in our legal system for which the maximum penalty of prision mayor may be
imposed, the excess of the life sentences imposed upon petitioners over the imposable maximum
of prision mayor cannot stand and must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents
a clear case of an excess in penalty imposed beyond twelve years of prision mayor which has
become illegal by virtue of this Court's settled doctrine that the crime of rebellion cannot be
complexed with other common crimes. On this ground, as well as on the further and more
fundamental ground that to hold them liable to continue serving life sentences for a crime that the
law—at the time of their conviction as well as now—punishes only with prision mayor which they
have more than fully served, would be to deny them their constitutional rights of due process and
equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional
and the petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

Footnotes

1 99 Phil. 515 (1956).

2 107 Phil. 50 (1960).

3 Art. 8 of the Civil Code provides: "Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal system of the Philippines."

4 According to Art. 22 of the Revised Penal Code: "Retroactive effect of penal laws.
—Penal laws shall have a retroactive effect insofar as they favor the person guilty of
a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62 of
this Code, although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same."

5 Petition, par. 1.1 dated January 11, 1969. The above allegations are expressly
lâwphî1.ñèt

admitted in the answer for the respondent Director of Prisons filed by the Solicitor
General on April 10, 1969.

6 99 Phil. 515 (1956).

7 The petition likewise cited in addition to People v. Hernandez, People v. Geronimo,

100 Phil. 90 (1956); People v. Togonon, 101 Phil. 804 (1957); People v. Romagoza,
103 Phil. 20 (1958) and People v. Santos, 104 Phil. 551 (1958). Petition, par. 1.2.

8 L-4974, May 16, 1969.

9 Petition, par. 1.3.

10 Chafee, The Most Important Human Right in the Constitution, 32 Boston Univ.
Law Rev. 143 (1947).

11 2 Cooley, Constitutional Limitations 709 (1927).

12 3 Willoughby on the Constitution 1612 (1929).

13 Burdick, the Law of the American Constitution 27 (1922).

14 Fraenkel, Our Civil Liberties 6 (1944).

15 Cf. In re Patterson, 1 Phil. 93 (1902).

16 Cf. Ortiz v. del Villar, 57 Phil. 19 (1932).

17 Cf. Slade Perkins v. Director of Prisons, 58 Phil. 271 (1933).

18 Cf. Pomeroy v. Director of Prisons, 107 Phil. 50, 59-62, diss. (1960).

19 Cf. Avelino v. Vera, 77 Phil. 192 (1946).

20 Cf. Saulo v. Cruz, 105 Phil. 315 (1959).

21 39 Phil. 778 (1919).

22 Ibid., p. 790.
23 42 Phil. 805 (1922).

24 Ibid., p. 805.

25 45 Phil. 650 (1924).

26 Ibid., p. 652.

27 Ex parte Watkins, 3 Pet. 193, 202.

28 Ex parte Yerger, 8 Wall. 85, 95.

29 Harris v. Nelson, 22 L Ed 2d 281, 286 (1969).

30 237 US 309, 346 (1915).

31 Section 4, Rule 102 provides: "If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court
or judge or by virtue of a judgment or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the discharge
of a person charged with or convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment." 3 Moran, Comments on the Rules of
Court, p. 604, 1970 ed.

32 In re Prautch, 1 Phil. 132.

33 100 US 371, 375. According to Ex parte Lange: "On consideration of the petition,
the court was of opinion that the facts therein recited very fairly raised the question
whether the circuit court, in the sentence which it had pronounced, and under which
the prisoner was held, had not exceed its powers. It therefore directed the writ to
issue, accompanied also by a writ of certiorari, to bring before this court the
proceedings in the circuit court under which the petitioner was restrained of his
liberty. The authority of this court in such case, under the Constitution of the United
States, and the 14th section of the judiciary act of 1789 (1 Stat. at L. 73), to issue this
writ, and to examine the proceedings in the inferior court, so far as may be necessary
to ascertain whether that court has exceeded its authority, is no longer open to
question." (85 US 163, 165-166 [1874]). Justice Miller, who penned the opinion, cited
the following cases: U. S. v. Hamilton, 3 Dall. 17 (1795); Ex parteBurford, 3 Cranch
448 (1806); Ex parte Bollman, 4 Cranch 75 (1807); Ex parte Watkins, 3 Pet. 193, 7
Pet. 508 (1830); Ex Parte Metzger, 5 How. 176 (1847); Ex parte Kaine, 14 How. 103
(1852); Ex parteWells, 18 How. 307 (1856); Ex Parte Milligan, 4 Wall. 2 (1866); Ex
parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8 Wall. 85 (1869).

34 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil.
741 (1948); Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals,
L-29169, Aug. 1968, 24 SCRA 663; Celeste v. People, L-21435, Jan. 30, 1970, 31
SCRA 391.
35 Petition, par. 5.1, p. 11.

36 J. M. Tuason & Co., Inc. v. Land Tenure Administration, L-21064, Feb. 18, 1970,
31 SCRA 413.

37 11 Phil. 447 (1908).

38 24 Phil. 29 (1913).

39 25 Phil. 648 (1913).

40 44 Phil. 387 (1923).

41 44 Phil. 437 (1923).

42 Frankfurter, The Reading of Statutes, reproduced in Of Law and Men, 47, at p. 53

(1956).

43 Powell, The Logic and Rhetoric of Constitutional Law, 1 Selected Essays on

Constitutional Law 474, at p. 481 (1938).

44 Thayer, The Origin and Scope of the American Doctrine of Constitutional Law,
Ibid., 503, at p. 524 (1938).

45 17 Phil. 269.

46 Ibid., pp. 272-273.

47 56 Phil. 692 (1932).

48 Ibid. p. 695.

TEEHANKEE, J.:

1 Petitioners Gumabon, Agapito and Palmares.

2 Petitioners Bagolbagol and Padua.

3 28 SCRA 72, 100 (May 16, 1969).

4 99 Phil. 515 (1956).

5 107 Phil., 50 (1960).

6 Reiterated in People vs. — Geronimo, 100 Phil., 90 (1956); — Togonon, 101 Phil.,
804 (1957); — Romagoza, 103 Phil., 20 (1958); and Aquino, 108 Phil., 814 (1960).

7 56 Phil. 692 (1932).

 8 Cruz vs. Director of Prisons, 17 Phil. 269 (1910); See also Caluag vs. Pecson, 82
Phil. 8 (1948).

9 57 Phil. 133 (1932).

10 44 Phil. 437 (1932), emphasis copied; see also People vs. Moran, 44 Phil. 387
(1923).

11 Pomeroy vs. Director of Prisons, supra fn. 5, see pp. 54, 61.

2. In re: Kay Villegas Kami, Inc. 35 SCRA 429 (1970)

EN BANC

G.R. No. L-32485 October 22, 1970

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS
AND DUTIES UNDER SEC. 8 OF R.A. No. 6132.

KAY VILLEGAS KAMI, INC., petitioner.

MAKASIAR, J.:.

This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly
recognized and existing non-stock and non-profit corporation created under the laws of the land, and
praying for a determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's
rights and duties thereunder. In paragraph 7 of its petition, petitioner avers that it has printed
materials designed to propagate its ideology and program of government, which materials include
Annex B; and that in paragraph 11 of said petition, petitioner intends to pursue its purposes by
supporting delegates to the Constitutional Convention who will propagate its ideology.

Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first paragraph
of Sec. 8(a) on the ground that it violates the due process clause, right of association, and freedom
of expression and that it is an ex post facto law.

The first three grounds were overruled by this Court when it held that the questioned provision is a
valid limitation on the due process, freedom of expression, freedom of association, freedom of
assembly and equal protection clauses; for the same is designed to prevent the clear and present
danger of the twin substantive evils, namely, the prostitution of electoral process and denial of the
equal protection of the laws. Moreover, under the balancing-of-interests test, the cleansing of the
electoral process, the guarantee of equal change for all candidates, and the independence of the
delegates who must be "beholden to no one but to God, country and conscience," are interests that
should be accorded primacy.1

The petitioner should therefore be accordingly guided by the pronouncements in the cases of
Imbong and Gonzales. 2
The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise
untenable.

An ex post facto law is one which:.

(1) makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act;

(2) aggravates a crime, or makes it greater than it was, when committed;

(3) changes the punishment and inflicts a greater punishment than the law annexed
to the crime when committed;

(4) alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;

(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

(6) deprives a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.3

From the aforesaid definition as well as classification of ex post facto laws, the constitutional
inhibition refers only to criminal laws which are given retroactive effect.4

While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec.
8(a) thereof, the penalty is imposed only for acts committed after the approval of the law and not
those perpetrated prior thereto. There is nothing in the law that remotely insinuates that Secs. 8(a)
and 18, or any other provision thereof, shall apply to acts carried out prior to its approval. On the
contrary, See. 23 directs that the entire law shall be effective upon its approval. It was approved on
August 24, 1970.

WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No.
6132 is not unconstitutional. Without costs.

Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.

Zaldivar, J., reserves his vote.

Concepcion, C.J., is on leave.

Separate Opinions
FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432
and Gonzales v. Comelec, L-32443.

BARREDO, J., dissenting:

Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case,
dissents, even as agrees that Republic Act 6132 is not ex post facto.

VILLAMOR, J., concurring:

Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.

TEEHANKEE, J., dissenting:

The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of section 8(a) of
Republic Act 6132. Inasmuch as I was unable to participate in the said cases, 2 I have expressed my contrary view
in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3 that the challenged provision, together with the Act's other
restrictions and strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of expression,
freedom of the press and freedom of association, and, deny due process and the equal protection of the
laws."

I therefore dissent from the Court's decision at bar for the same reason and considerations stated in
my separate dissenting opinion in the case of Badoy.

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales that
"(W)hile it may be true that a party's support of a candidate is not wrong per se, it is equally true that
Congress in the exercise of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the party or organization
support prescribed in Sec. 8(a), which ban is a valid limitation on the freedom of association as well
as expression, for the reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "

I trust that said statements were not intended, and should not be construed, as endorsing the
contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the Constitution cannot
be invoked for the right of association when the purpose is a malum prohibitum because such
purpose would be "contrary to law" " and "(O)nce the ban (on party and organization support) is
approved into law, the freedom of association cannot be invoked against it" since the Constitution
decrees only that "(T)he right to form associations or societies for purposes not contrary to law shall
not be abridged."4

Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of association
which has its root in the Malolos Constitution would render sterile and meaningless the
Constitutional safeguard, should Congress be conceded, in the exercise of its broad law-making
authority, the power to strike down at any time associations and societies by the simple expedient of
declaring their purposes or certain activities, not wrong per se as "contrary to law" or mala prohibita.
I believe that such a concept begs the question. Obviously, the word "law" in the qualifying clause
"for purposes not contrary to law" does not mean that an enactment of the legislature forecloses the
question with finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita must pass
the usual constitutional test of reasonableness and furthermore, must not abridge freedom of speech
and press.5

# Separate Opinions

FERNANDO, J., concurring and dissenting:

Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432
and Gonzales v. Comelec, L-32443.

BARREDO, J., dissenting:

Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case,
dissents, even as agrees that Republic Act 6132 is not ex post facto.

VILLAMOR, J., concurring:

Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.

TEEHANKEE, J., dissenting:.

The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs.
Ferrer and Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of section 8(a) of
Republic Act 6132. Inasmuch as I was unable to participate in the said cases, 2 I have expressed my contrary view
in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3 that the challenged provision, together with the Act's other
restrictions and strictures enumerated therein, "oppressively and unreasonably straitjacket the candidates
as well as the electorate and gravely violate the constitutional guaranties of freedom of expression,
freedom of the press and freedom of association, and, deny due process and the equal protection of the
laws."

I therefore dissent from the Court's decision at bar for the same reason and considerations stated in
my separate dissenting opinion in the case of Badoy.

I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales that
"(W)hile it may be true that a party's support of a candidate is not wrong per se, it is equally true that
Congress in the exercise of the broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the party or organization
support prescribed in Sec. 8(a), which ban is a valid limitation on the freedom of association as well
as expression, for the reasons aforestated. Senator Tolentino emphasized that 'equality of chances
may be better attained by banning all organization support.' "

I trust that said statements were not intended, and should not be construed, as endorsing the
contention of Senator Tolentino, the Act's sponsor, that "(T)he protection of the Constitution cannot
be invoked for the right of association when the purpose is a malum prohibitum because such
purpose would be "contrary to law" " and "(O)nce the ban (on party and organization support) is
approved into law, the freedom of association cannot be invoked against it" since the Constitution
decrees only that "(T)he right to form associations or societies for purposes not contrary to law shall
not be abridged."4

Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of association
which has its root in the Malolos Constitution would render sterile and meaningless the
Constitutional safeguard, should Congress be conceded, in the exercise of its broad law-making
authority, the power to strike down at any time associations and societies by the simple expedient of
declaring their purposes or certain activities, not wrong per se as "contrary to law" or mala prohibita.
I believe that such a concept begs the question. Obviously, the word "law" in the qualifying clause
"for purposes not contrary to law" does not mean that an enactment of the legislature forecloses the
question with finality and sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala prohibita must pass
the usual constitutional test of reasonableness and furthermore, must not abridge freedom of speech
and press.5

# Footnotes.

1 Imbong vs. Comelec, L-32432 and Gonzales vs. Comelec, L-32443, September
11, 1970.

2 Ibid.

3 Calder vs. Bull, 3 Dall. 386, Mekin vs. Wolfe, 2 Phil. 74.

4 Fernandez vs. Oasan, L-9141, Sept. 25, 1956, 99 Phil. 934, 937.

TEEHANKEE, J., dissenting:

1 Nos. L-32432 and L-32443, jointly decided.

2 The writer hereof was then on official leave.

3 Nos. L-32456 and L-32551, October 17, 1970.

4 Sponsorship speech of Senator Arturo Tolentino of July 20, 1970, notes in

parentheses furnished; emphasis copied; cit, Art, III, Sec. 1(6), Philippine
Constitution.

5 See 2 Tañada and Carreon, Political Law of the Philippines, 209.

3. People v. Narvaez, 121 SCRA 389 (1983)

EN BANC

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in
Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of
the accused in a decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating

circumstance of evident premeditation offset by the mitigating circumstance of
voluntary surrender. The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of
murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00
as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as
attorney's fees, the offended party having been represented by a private prosecutor,
and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA,

to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's
fees, the offended party having been represent by a private prosecutor, and to pay
the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia,
were fencing the land of George Fleischer, father of deceased Davis Fleischer. The
place was in the boundary of the highway and the hacienda owned by George
Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place
of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182,
t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the
walls of his house were being chiselled, he arose and there he saw the fencing going
on. If the fencing would go on, appellant would be prevented from getting into his
house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if
possible you stop destroying my house and if possible we will talk it over what is
good,' addressing the deceased Rubia, who is appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant
 apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As
Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense
transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n.,
Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased
Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom was
appellant.

From the available records of the related cases which had been brought to the Court of Appeals
(CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-
45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937
and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato.
He established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the
settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner
in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly
leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but
the survey report was not submitted until 1946 because of the outbreak of the second world war.
According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6
hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open
for disposition, appraised and advertised for public auction. At the public auction held in Manila on
August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of
protests from the settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty.
Gozon came back after ten days with an amicable settlement signed by the representative of the
settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands,
acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land
in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and
Natural Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato
which then consisted only of one sala, for the purpose of annulling the order of the Secretary of
Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the
contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation, deceit,
misrepresentation and fraudulent machination on the part of the company. They appealed to the
Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of
the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated September
24, 1966, from the land which they had been occupying for about 30 years. Among those ejected
was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of
around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the
highway. The second house is not far from the site of the dismantled house. Its ground floor has a
store operated by Mrs. June Talens who was renting a portion thereof. He also transferred his store
from his former residence to the house near the highway. Aside from the store, he also had a rice
mill located about 15 meters east of the house and a concrete pavement between the rice mill and
the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and
other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain
an injunction or annulment of the order of award with prayer for preliminary injunction. During the
pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No.
38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00
monthly. According to him, he signed the contract although the ownership of the land was still
uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid
the agreed rental, although he alleges that the milling job they did for Rubia was considered
payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land
in which your house and ricemill are located as per agreement executed on February
21, 1967. You have not paid as as even after repeated attempts of collection made
by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no
alternative but to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher
pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on
December 31, 1966.

In the event the above constructions have not been removed within the six- month
period, the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by
putting bamboo posts along the property line parallel to the highway. Some posts were planted right
on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n.,
Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when
finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from
the highway, since the door of the same opens to the Fleischers' side. The fencing continued on that
fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all
morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up
and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling
the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased
was parked on the highway. The rest of the incident is narrated in the People's Brief as above-
quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and
claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-
appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-
appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145,
rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot
them from the window of his house with the shotgun which he surrendered to the police authorities.
He claims, however, that he did so in defense of his person and of his rights, and therefore he
should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the
Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself (Art.
11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the
following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to
his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin
kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened
to see the wall of his house being chiselled. The verbal exchange took place while the two deceased
were on the ground doing the fencing and the appellant was up in his house looking out of his
window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot
Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia,
appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot,
Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran
towards the jeep and knowing that there was a firearm in the jeep and thinking that if
he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim,
however, that the deceased were in lawful exercise of their rights of ownership over the land in
question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five
persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling
of the walls of appellant's house. The fence they were putting up was made of bamboo posts to
which were being nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar,
and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going to
the place was parked just a few steps away, and in it there was a gun leaning near the steering
wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was
to look out of the window. Then he saw the damage being done to his house, compounded by the
fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He
therefore appealed to hiscompadre, the deceased Rubia, to stop what they were doing and to talk
things over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men
to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have
resulted in the further chiselling of the walls of appellant's house as well as the closure of the access
to and from his house and rice mill-which were not only imminent but were actually in progress.
There is no question, therefore, that there was aggression on the part of the victims: Fleischer was
ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the
person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellant's house and to shut off his ingress and egress to his
residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or
tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the
order of award to Fleischer and Company was still pending in the Court of First Instance of
Cotabato. The parties could not have known that the case would be dismissed over a year after the
incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the
annulment of the award to the company, between the same parties, which the company won by
virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said
compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and
to cancel the corresponding certificate of title issued to the company, on the ground that the Director
of Lands had no authority to conduct the sale due to his failure to comply with the mandatory
requirements for publication. The dismissal of the government's supplemental petition was premised
on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner
Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it
joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil
Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21,
1967 was just to avoid trouble. This was explained by him during cross-examination on January 21,
1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place
because even though we do not know who really owns this portion to avoid trouble.
To avoid trouble we better pay while waiting for the case because at that time, it was
not known who is the right owner of the place. So we decided until things will clear up
and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n.,
Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits)
within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his
properties up to that time, instead of chiselling the walls of his house and closing appellant's
entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as

long as there is a possessor who objects thereto. He who believes that he has an
action or a right to deprive another of the holding of a thing must invoke the aid of the
competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should
he be disturbed therein he shall be protected in or restored to said possession by the
means established by the laws and the Rules of Court (Articles 536 and 539, Civil
Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellant's house, nor to close his accessibility to the highway while he was pleading with them to
stop and talk things over with him. The assault on appellant's property, therefore, amounts to
unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate

and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the
right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any
person from the enjoyment and disposal thereof. For this purpose, he may use such
force as may be reasonably necessary to repel or prevent an actual or threatened
unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-
defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the
appellant fired his shotgun from his window, killing his two victims, his resistance was
disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was
no provocation at all on his part, since he was asleep at first and was only awakened by the noise
produced by the victims and their laborers. His plea for the deceased and their men to stop and talk
things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements
for justification are present. He should therefore be held responsible for the death of his victims, but
he could be credited with the special mitigating circumstance of incomplete defense, pursuant to
paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE
held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted
by the aggressor was deliberately chosen with a special view to the accomplishment of the act
without risk to the assailant from any defense that the party assailed might have made. This cannot
be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently
established. The only evidence presented to prove this circumstance was the testimony of Crisanto
Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying
corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum,
South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked
him to help them, as he was working in the hacienda. She further told him that if they
fenced their house, there is a head that will be broken. Mamerto Narvaez added
'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will
break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the
latter told him not to believe as they were only Idle threats designed to get him out of
the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of
evident premeditation. As WE have consistently held, there must be "direct evidence of the planning
or preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but
the criminal intent must be evidenced by notorious outward acts evincing the determination to
commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the
accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there
was sufficient interval between the premeditation and the execution of the crime to allow them (him)
to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis
Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the
victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial
court's conclusion as to the presence of such circumstance may not be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing
and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary
surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in
danger of closing down for lack of access to the highway. These circumstances, coming so near to
the time when his first house was dismantled, thus forcing him to transfer to his only remaining
house, must have so aggravated his obfuscation that he lost momentarily all reason causing him to
reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts
of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with
dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands
of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he
should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defense-in view of the presence of unlawful aggression on the part of the victims and
lack of sufficient provocation on the part of the appellant-and by two generic mitigating circumstance
of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion
temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees shall be imposed if
the deed is not wholly excusable by reason of the lack of some of the conditions required to justify
the same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article
64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of
two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed
to the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they
actually provoked the attack by damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal councilor, the victims' actuations
were apparently designed to humiliate him and destroy his reputation. The records disclose that his
wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail
despite the absence of evidence linking her to the killings. She was dropped as a defendant only
upon motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816),
but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company,
despite its extensive landholdings in a Central Visayan province, to extend its accumulation of public
lands to the resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to
carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision
correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to
serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the
amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39
applicable to fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable
to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO

(2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY
AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP
OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR
THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN
(14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS
IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin

Vasquez and Relova, JJ., concur.

Aquino, J., is on leave.

Plana, J., in the result.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not
property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that
Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use
such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense
but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be
invoked when it is coupled with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or incomplete, to be available in prosecutions
for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less
made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by
the two generic mitigating circumstances of voluntary surrender and obfuscation, without any
aggravating circumstance, maximum the sentence the appellant should have served was prision
mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any
award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since
August 22, 1968, he has served the penalty and should be released.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not
property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that
Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use
such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense
but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be
invoked when it is coupled with some form of attack on the person of one entrusted with said
property. The defense of property, whether complete or incomplete, to be available in prosecutions
for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less
made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority
opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by
the two generic mitigating circumstances of voluntary surrender and obfuscation, without any
aggravating circumstance, maximum the sentence the appellant should have served was prision
mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of
the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any
award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since
August 22, 1968, he has served the penalty and should be released.
 4. People v. Ringor, 320 SCRA 342 (1999)

EN BANC

G.R. No. 123918 December 9, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AUGUSTO LORETO RINGOR, JR., accused-appellant.

PURISIMA, J.:

For automatic review is the Decision 1 dated November 13, 1995 of Branch 6 of the Regional Trial Court
in Baguio City, finding accused-appellant Augusto Loreto Ringor, Jr. guilty of the crime of murder and
sentencing him to suffer the supreme penalty death in Criminal Case No. 13102-R, also guilty of illegal
possession of firearms under P.D. No. 1866 in Criminal Case No. 13100-R for and disposing thus:

WHEREFORE, Judgment is rendered as follows:

1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto Loreto
Ringor Guilty beyond reasonable doubt of the crime of Murder defined and penalized
under Article 248 of the Revised Penal Code as amended by Section 6, RA 7659,
qualified by Treachery and as further qualified by the use of an unlicensed firearm
and hereby sentences him to suffer the supreme penalty of Death; to indemnify the
heirs of deceased Marcelino Florida, Jr., the sum of P50,000.00 for his death and the
sum of P100,000.00 as Moral damages for his death, both indemnification being
without subsidiary imprisonment in case of insolvency and to pay the costs.

2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto
Ringor Guilty beyond reasonable doubt of the offense of Violation of Section 1 PD
1866 (Illegal Possession of firearm and ammunitions) as charged in the Information
and hereby sentences him, applying the Indeterminate Sentence Law, to an
imprisonment ranging from 17 years 4 months and 1 day as Minimum to 20 years as
Maximum and to pay the costs.

The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A) being
the subject of the offense is hereby declared confiscated and forfeited in favor of the
State.

The accused Augusto Loreto Ringor is entitled to be credited in the service of his
sentence four fifth (4/5) of his preventive imprisonment in accordance with Article 29
of the Revised Penal Code.

SO ORDERED. 2

Filed on June 28, 1994, the Informations against accused-appellant, alleges:

In Criminal Case No. 13102-R

That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, being then
armed with a Caliber 38 handgun paltick with Serial Number 853169 and with intent
to kill, did then and there willfully, unlawfully, and feloniously attack, assault and
shoot MARCELINO BUSLAY FLORIDA, JR. thereby inflicting upon the latter
hypovolemic shock secondary to massive hemorrhage; multiple gunshot wounds of
the liver, stomach, small intestine and mesentric blood vessels, which injuries directly
caused his death.

That the qualifying circumstance of TREACHERY attended the commission of the

crime when the accused suddenly attacked victim and shot him several times at the
back, with the use of a handgun, thus employing means, methods of forms in the
execution thereof which tend directly and specially to insure its execution, without
risk to himself arising from the defense which the offended party might make.

CONTRARY TO LAW. 3

and in Criminal Case No. 13100-R

That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and
within the jurisdiction of this honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously possess and carry outside of his
residence, a firearm, Caliber .38 revolver (Paltik) bearing Serial Number 853169,
without any legal authority or permit from any government official or authority
concerned, in violation of the above cited provision of law.

CONTRARY TO LAW. 4

With the accused-appellant, assisted by counsel, entering a plea of Not Guilty upon
arraignment, a joint trial of the two cases ensued.

The inculpatory facts and circumstances sued upon are succinctly summarized in the Appellee's
Brief as follows:

On June 23, 1994, at around 6:00 P.M. (sic), Fely Batanes, a waitress at People's
Restaurant located at Kalantiao St., Baguio City, saw appellant Ringor and his two
companions enter the restaurant. (Tsn, December 8, 1994, p. 4). After seating
themselves, the group ordered a bottle of gin (ibid., p. 6). Minutes later, appellant
approached one of the tables where Florida, the restaurant's cook was drinking beer.
Without any warning, appellant pulled Florida's hair and poked a knife on the latter's
throat. Florida stood up and pleaded with appellant not to harm him (ibid., p. 7).
Appellant relented and released his grip on Florida. Thereafter, he left the restaurant
together with his companions. However, a few minutes latter he was back (ibid, p. 8).

Appellant brandished a gun and menacingly entered the restaurant. Not

encountering any resistance, he thus proceeded to the kitchen where Florida worked
(ibid). Stealthily approaching Florida from behind, appellant fired six successive shots
at Florida who fell down (ibid., p. 9). His evil deed accomplished, appellant left the
kitchen and fled (ibid).
 Appellant was chased by a man who while running, shouted at onlookers that the
person he was running after was armed and had just killed somebody. Alerted, SPO2
Fernandez, who was then in the vicinity, went into action and nabbed appellant. He
frisked appellant and recovered from him a Paltik revolver, caliber. 38, with Serial
Number 853169 (Exh. A). He checked the revolver's cylinder and found six empty
cartridges (Exhs. T to T-6). He noted that it smelled of gunpowder. He and PO1
Ortega turned over appellant and the confiscated firearm to the Investigation Division
of the Baguio Police and then executed a Joint Affidavit of Arrest (Exhibit O). On the
same night, Fely Batanes gave her sworn statement (Exhibit E) to the Baguio Police
wherein she positively identified appellant as the assailant.

xxx xxx xxx

NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive for
nitrates as stated in her Chemist Report No. C-94-22. She conducted a microscopic
chemical examination on the subject firearm and found that the gun was fired within
one week prior to June 27, 1994.

Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI, Manila,
tested and concluded that the slugs recovered from the victim were fired from
appellant's firearm. Upon verification from the Firearms Explosive division, Camp
Crame, Quezon City, it was found that appellant is not a licensed firearm holder nor,
was the subject firearm duly registered with the said office (Exh. A). 5

The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a Necropsy
Report, which states:

POST MORTEM FINDINGS

Body of a male, 1.66 m. height, medium built, with complete rigor mortis, lividity well
developed on the dependent parts, cloudy cornea and dilated pupils with very pale
papebral conjunctive.

Gunshot wounds: GSW no. 1 measuring 10 x 10 mm. serrated edges, positive

powder burns located at the left mid clavicular line, posterior, 2 inches below the
shoulder. It was directed downward towards the mid-body, penetrating the skin. (sic)
soft tissue, middle 3rd of the 3rd rib, the upper and lower lobes of the left lung to the
diaphragm, through and through the stomach, lacerating the superior mesentric
vessels, perforating the small intestine then lodged at the superior surface of the
urinary bladder (slug was recovered marked no. 1)

GSW no. 2 measures 8 mm. diameter, positive powder burns, located on the right
shoulder near the s. joint posteriorly, penetrating the skin, soft tissue, then lodged at
the surface of the fractured surgical neck of the humorous (sic) (slug recovered).
Marked no. 2.

GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the right
shoulder posteriorly near the joint penetrating the skin, soft tissues, and the head of
the Humorous, (sic) then dislodged form the same entry point.
 GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located at
the anterior left parasternal line at the level of the 6th ICS. It was directed downward
towards the posterior of the body, penetrating the skin, soft tissue, the left lobe of the
liver with partial avulsion, then perforating the stomach through and though the
duodenum lumbar muscle then lodged underneath the skin, (1) paravertebral, level
of L3 (slug recovered marked no. 4).

CAUSE OF DEATH:

HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE; MULTIPLE

GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL INTESTINE AND
MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s) of the body. 6

Accused-appellant admitted shooting the victim but theorized that he acted in self-defense. As
embodied in the Appellant's Brief, the defense version runs thus:

3.01 On June 23, 1994, at a little after five o'clock in the afternoon, appellant,
together with two (2) other companions, entered the People's Restaurant in Baguio
City to order drinks. They sat at a table next to another then occupied by Marcelino
B. Florida, Jr. (Florida) and a woman companion (TSN, Testimony of Augusto Loreto
G. Ringor, Jr., May 4, 1995, pp. 3-6).

3. 02 Soon after receiving their orders, appellant's companion, Ramon Fernandez,

stood up and approached Florida to inquire about his (Fernandez') brother, Cesar.
Florida angrily responded to the query and said, "Putang ina ninyo! anong pakialam
ko diyan!"

3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the
appellant to intervene and pacify Fernandez. When Fernandez drew out a gun from
his waist, appellant immediately seized the same directing his friend to leave the
restaurant before he started hurting other people with his gun. No sooner had
Fernandez stepped out, however, Florida, armed with a bolo, came charging in from
the kitchen and headed towards the appellant. (Ibid., pp. 6-7)

3.04 Surprised, appellant shot Florida with the gun he was holding just as the latter
was about to hit him with the bolo. Thereafter, appellant put the gun on the table and
walked out of the restaurant. Once already outside the restaurant, appellant's other
companion, Virgilio, followed him and handed to him the gun he (appellant) left at the
table. He then proceeded to surrender the gun and report the incident at the nearest
police station. (Ibid., pp. 8-9)

3.05 Before appellant could reach the police station, however, appellant was already
arrested by off-duty policeman who brought him back to the People's Restaurant.
Appellant was thereafter incarcerated at the Baguio City Police Station. (Ibid., pp. 10-
12) 7

On November 13, 1995, the trial court handed down decision under automatic review. Accused-
appellant contends that:

I
 THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE
ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM TO SUFFER AN
INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY AS MINIMUM TO 20
YEARS AS MAXIMUM.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER.

III

THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO

DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF MURDER WAS NOT
PROVED BY THE PROSECUTION; AND (ii) ASSUMING ARGUENDO THAT
MURDER WAS COMMITTED BY APPELLANT, THE APPROPRIATE PENALTY
FOR THE OFFENSE IS RECLUSION PERPETUA THERE BEING NO
AGGRAVATING CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH. 8

Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing.
The onus probandi is thus shifted to him to prove the elements of self-defense and that the killing
was justified; 9 otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he must
rely on the strength of his own evidence and not on the weakness of the prosecution's evidence. 10

For self-defense to prosper, it must be established that: (1) there was unlawful aggression by the
victim; (2) that the means employed to prevent or repel such aggression was reasonable; and (3)
that there was lack of sufficient provocation on the part of person defending himself. 11

In the case at bar, accused-appellant failed to prove the element of unlawful aggression. The
allegation that the victim allegedly went out of the kitchen armed with a bolo, and was about to hack
him (accused-appellant) who was then at an almost prone lying position on the table he was
occupying, 12 is a self-serving and unconvincing statement which did not anyway constitute the requisite
quantum of proof for unlawful aggression. Prosecution witness Fely Batanes, a waitress in the restaurant
where the shooting incident occurred, was firm in her declaration that the victim was in the kitchen
unarmed 13 when the accused-appellant shot him. The victim had no weapon or bolo. He was neither
threatening to attack nor in any manner manifesting any aggressive act which could have imperiled
accused-appellant's safety and well-being.

No improper motive having been shown on the part of Fely Batanes to testify falsely against
accused-appellant or to implicate him in the commission of the crime, the logical conclusion is that
there was no such improper motive and her testimony is worthy of full faith and credit. 14

What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after the
incident, the body of the victim was found lying in the kitchen and not outside; thus weakening
further the theory of accused-appellant that he shot the victim while they were at the dining area. 15

Then too, the nature, location and number of gunshot wounds inflicted on the deceased belie
accused-appellant's theory of self-defense. 16 The deceased sustained three gun shot wounds on the
back and one in front. Dr. John Tinoyan, who conducted the autopsy on the cadaver of the victim, testified
that the gunshot wound on the frontal portion of the victim's body showed a downward trajectory of the
bullet on his chest, penetrating the liver, perforating the stomach down to the small intestine, and then
lodged underneath the skin. 17 Verily, such finding negates the claim of accused-appellant that he shot the
victim while he was at an almost prone lying position and the victim was standing in front of him about to
strike with a bolo. If this were true, the trajectory of the bullet should have been upward or better still, it
should have been at the level at which the gun was fired while he (accused-appellant) was in a prone
lying position.

Rather telling are the three gunshot wounds on the back of the victim, which wounds showed traces
of gunpowder which, according to Dr. Tinoyan, indicated that the weapon used was at a distance of
less than one meter. 18Evidently, accused-appellant stealthily approached the victim from behind and
fired at him six successive shots, four of which hit him, to ensure his death. 19 If he shot the victim merely
to defend himself, there would have been no cause for accused-appellant to pump several bullets into the
body of the victim.

In light of the foregoing, the imputation of unlawful aggression on the part of the victim cannot be
believed. Absent the element of unlawful aggression by the deceased, there can be no self-defense,
complete or incomplete. If there was no unlawful aggression, there was nothing to prevent or repel
and the second and third requisites of self-defense would have no basis. 20

The Court a quo properly appreciated the aggravating circumstance of treachery which qualified the
crime to murder. It was clearly established that the accused-appellant fired six successive shots on
the victim, suddenly, without warning, and from behind, giving the victim no chance to flee or to
prepare for his defense or to put up the least resistance to such sudden assault. There is treachery
when the means, manner or method of attack employed by the offender offered no risk to himself
from any defensive or retaliatory act which the victim might have taken. 21

All things studiedly considered and viewed in proper perspective, the mind of the Court can rest easy
on a finding that accused-appellant Augusto Loreto Ringor, Jr. is guilty beyond reasonable doubt of
the crime of murder, and did not act in self-defense.

Art. 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to
death for the crime of murder. When, as in this case, neither aggravating nor mitigating circumstance
is attendant, the lesser penalty of reclusion perpetua has to be applied, 22 in accordance with Article
63(2) of the Revised Penal Code.

With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No.
1866, it was held in the case of People vs.
Molina 23 and reiterated in the recent case of People vs. Ronaldo Valdez, 24 that in cases where murder or
homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the
crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by
Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply
considered as an aggravating circumstance in the murder or homicide and no longer as a separate
offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no
other crime is committed. 25 In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special aggravating
circumstance. 26

It bears stressing, however, that the dismissal of the present case for illegal possession of firearm
should not be misinterpreted to mean that there can no longer be any prosecution for the offense of
illegal possession of firearms. In general, all pending cases involving illegal possession of firearms
should continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294
are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or
attempted coup d' etat, under Section 3). 27

Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to the accused, it
has to be applied retroactively. Thus, insofar as it spares accused-appellant a separate conviction
for illegal possession of firearms, Republic Act No. 8294 has to be given retroactive application in
Criminal Case No. 13100-R.

On the matter of the aggravating circumstance of "use of unlicensed firearm" in the commission of
murder or homicide, the trial court erred in appreciating the same to qualify to death the penalty for
the murder committed by accused-appellant. It should be noted that at the time accused-appellant
perpetrated the offense, the unlicensed character of a firearm used in taking the life of another was
not yet an aggravating circumstance in homicide or murder; to wit:

Neither is the second paragraph of Section 1 meant to punish homicide or murder

with death if either crime is committed with the use of an unlicensed firearm, i.e., to
consider such use merely as a qualifying circumstance and not as an offense. That
could not have been the intention of the lawmaker because the term "penalty" in the
subject provision is obviously meant to be the penalty for illegal possession of firearm
and not the penalty for for homicide or murder. We explicitly stated in Tac-an:

There is no law which renders the use of an unlicensed firearm as an

aggravating circumstances in homicide or murder. Under an
information charging homicide or muder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the
penalty of the second offense of homicide or murder to
death (or reclusion perpetua under 1987 Constitution). The essential
point is that the unlicensed character or condition of the instrument
used in destroying human life or committing some other crime, is not
included on the inventory of aggravating circumstances set out in
Article 14 of the Revised Penal Code.

A law may, of course, be enacted making the use of an unlicensed firearm as a

qualifying circumstance. 28 (Emphasis supplied)

Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed firearm
as an aggravating circumstance in murder or homicide, the penalty for the murder committed by
accused-appellant on June 23, 1994 was not death, as erroneously imposed by the trial court. There
was yet no such aggravating circumstance of use of unlicensed firearm to raise the penalty for
murder from reclusion perpetua to death, at the time of commission of the crime.

The amendatory law making the "use of an unlicensed firearm" as an aggravating circumstance in
murder or homicide, cannot be applied here because the said provision of R.A. No. 8294 is not
favorable to accused-appellant, lest it becomes an ex post facto law. 29

WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the modification that
accused-appellant Augusto Loreto Ringor, Jr. is hereby sentenced to suffer the penalty of reclusion
perpetua. It is understood that the civil liabilities imposed below are UPHELD.

Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is DISMISSED. No
pronouncement as to costs.

SO ORDERED.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago and De Leon, Jr., JJ., concur.
Davide, Jr., C.J. and Panganiban, J., in the result.

Footnotes

1 Penned by Judge Ruben C. Ayson.

2 Decision, Rollo, pp. 40-41.

3 Rollo, p. 13.

4 Rollo, p. 11.

5 Appellee's Brief, Rollo, pp. 155-158.

6 Ibid., Rollo, pp. 156-157.

7 Appellant's Brief, Rollo, pp. 66 -67.

8 Ibid., pp. 67-72.

9 People vs. Unarce, 270 SCRA 756, pp. 762-763; citing: People vs. Macagaling, 237 SCRA
299 [1994]; People vs. Alapide, 236 SCRA 555 [1994]; People vs. Ocana, 229 SCRA 341
[1994]; Bitalac vs. CA, 241 SCRA 351 [1995].

10 Ibid., citing: People vs. Gregorio, 255 SCRA 380 [1996]; People vs. Aliviado, 247 SCRA
302 [1995]; People vs. Decena, 235 SCRA 67 [1994]; People vs. Salazar, 221 SCRA 170
[1993].

11 Ibid., citing: People vs. Gregorio, supra; People vs. Morin, 241 SCRA 709 [1995]; People
vs. Flores, 237 SCRA 635 [1994]; People vs. Gutual, 254 SCRA 37 [1996]; People vs.
Bernal, 254 SCRA 699 [1996].

12 Tsn, p. 16; cross-examination of Augusto Loreto Ringor, May 4, 1995.

13 Tsn., p. 25; cross-examination of Fely Batanes, December 13, 1994.

14 People vs. Pija, 245 SCRA 80, pp. 84-85; citing: People vs. Rostata, Jr., 218 SCRA 657.

15 Tsn., cross-examination of Augusto Loreto Ringor, May 4, 1995, p. 17.

16 People vs. Unarce, supra, p. 764, citing: People vs. Morin, supra; People vs. Camahalan,
241 SCRA 558 [1995]; People vs. Tanduyan, 236 SCRA 433 [1994]; People vs. Amaro, 235
SCRA 8 [1994]; People vs. Gregorio, 255 SCRA 380 [1996]; People vs. Layam, 234 SCRA
424 [1994].

17 Tsn, cross examination of Dr. John Tinoyan, December 13, 1994, pp. 6, 10-11.

18 Ibid., pp. 4-6.

19 Ibid., p. 10.
 20 People vs. Unarce, supra, p. 764, citing: People vs. Ramirez, 203 SCRA 25 [1991];
People vs. Alapide 236 SCRA 555 [1994]; and People vs. Morato 244 SCRA 361 [1993].

21 Ibid., p. 765, citing: Rosales vs. Court of Appeals, 255 SCRA 123 [1996]; People vs.
Bello, 237 SCRA 347 [1994]; People vs. Muyano, 235 SCRA 184 [1994]; Art. 14, Revised
Penal Code.

22 Art. 63 (2) of the Revised Penal Code.

23 292 SCRA 742.

24 G.R. No. 127663, March 11, 1999.

25 Sec. 1 of R.A. No. 8294.

26 People vs. Molina, supra, at p. 782.

27 People vs. Valdez, supra.

28 People vs. Molina, supra, pp. 782-783; citing: People vs. Tac-an, 182 SCRA 601 and
People vs. Quijada, 295 SCRA 191.

29 People vs. Ronaldo Valdez, supra.

5. People v. Pimentel, 288 SCRA 542 (1998)

EN BANC

G.R. No. 100210 April 1, 1998

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN,respondents.

MARTINEZ, J.:

Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling that Subversion is the "main offense" in a charge
of Illegal Possession of Firearm and Ammunition in Furtherance of Subversion under P.D. No. 1866, as amended, and that, therefore, the
said charge should be quashed in view of a previous charge of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the
same accused pending in another court?

Stated differently, is the accused charged with the same offense in both cases, which would justify
the dismissal of the second charge on the ground of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari interposed by the People under
Rule 45 of the Revised Rules of Court, seeking a review of the decision 1 of the Court of Appeals
(Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE
PHILIPPINES, Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila,
Branch 148 and ANTONIO A. TUJAN, Respondents."

The record discloses the following antecedent facts:

As early as 1983, private respondent Antonio Tujan was charged with Subversion under Republic
Act No. 1700 (the Anti-Subversion Law), as amended, before the Regional Trial Court of Manila
(Branch 45), National Capital Region, docketed as Criminal Case No. 64079. 2 As a consequence
thereof, a warrant for his arrest was issued on July 29, 1983, 3 but it remained unserved as he could not
be found.

Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the basis of
the warrant of arrest in the subversion case. 4 When arrested, an unlicensed .38 caliber special revolver
and six (6) rounds of live ammunition were found in his possession. 5

Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion under Presidential Decree No. 1866, as amended, before the
Regional Trial Court of Makati (Branch 148), docketed as Criminal Case No. 1789. The Information reads:

That on or about the 5th day of June, 1990, in the Municipality of Parañaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
being a member of a communist party of the Philippines, and its front organization, did then
and there willfully, unlawfully and feloniously have in his possession, control and custody, in
furtherance of or incident to, or in connection with the crime of subversion, a special edition
ARMSCOR PHILS. caliber .38 special revolver with Serial No. 1026387 and with six (6) live
ammunitions, without first securing the necessary license or permit thereof from competent
government authority. 6

The above Information recommended no bail for Antonio Tujan, which recommendation was approved by
the trial court in an Order dated June 19, 1990. 7 The same order also directed the continued detention of
Antonio Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Bago
Bantay, Quezon City, while his case is pending.

On June 26, 1990, Antonio Tujan, through counsel, filed a motion 8 invoking his right to a preliminary
investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and praying that his
arraignment be held in abeyance until the preliminary investigation is terminated.

However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary
investigation, his counsel withdrew the motion since he would file a motion to quash the Information,
for which reason counsel requested a period of twenty (20) days to do so. This was granted by the
trial court on that same day. 9

On July 16, 1990, Antonio Tujan did file the motion to quash 10 the Information in Criminal Case No. 1789
on the ground that he "has been previously in jeopardy of being convicted of the offense charged" in
Criminal Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch 45). The said
ground is based on Sections 3 (h) and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of
the motion, Antonio Tujan contends that "common crimes such as illegal possession of firearms and
ammunition should actually be deemed absorbed in subversion," 11 citing the cases of Misolas vs. Panga,
et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163,
June 5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin prosecution" of
"the earlier subversion case" and, therefore, he "is entitled to invoke the constitutional protection against
double jeopardy." 12

The petitioner opposed 13 the motion to quash, arguing that Antonio Tujan does not stand in jeopardy of
being convicted a second time because: (a) he has not even been arraigned in the subversion case, and
(b) the offense charged against him in Criminal Case No. 64079 is for Subversion, punishable under
Republic Act No. 1700; while the present case is for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion, punishable under a different law (Presidential Decree No. 1866). Moreover,
petitioner contends that Antonio Tujan's reliance on the Misolas and Enrile cases "is misplaced." 14Tujan
merely relies on the dissenting opinions in the Misolas case. Also, the Enrile case which involved a
complex crime of rebellion with murder is inapplicable to the instant case which is not a complex offense.
Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for application in the
present case because (illegal) possession of firearm and ammunition is not a necessary means of
committing the offense of subversion, nor is subversion a necessary means of committing the crime of
illegal possession of firearm and ammunition." 15

The trial court, in an order dated October 12, 1990, granted the motion to quash the Information in
Criminal Case No. 1789, the dispositive portion of the order reading:

WHEREFORE, the motion to quash the information is hereby GRANTED, but only in so far
as the accused may be placed in jeopardy or in danger of being convicted or acquitted of the
crime of Subversion and as a consequence the Information is hereby quashed and the case
dismissed without prejudice to the filing of Illegal Possession of Firearm.

SO ORDERED. 16

It is best to quote the disquisition of the respondent court in quashing the information and dismissing the
case:

xxx xxx xxx

In other words, the main offense the accused is being charged in this case is also
Subversion considering that the alleged Illegal Possession of the Firearm and Ammunition is
only in furtherance thereof.

Now, subversion being a continuing offense as has been previously held by the Supreme
Court, the fact that the accused has been previously charged of Subversion before another
court before the institution of this instant case is just a continuing offense of his former
charge or that his acts constituting subversion is a continuation of the acts he committed
before.

The court therefore cannot subscribe to the position taken by the prosecution that this case
is very different from the other case and that double jeopardy will attach in this particular
case.

This court agrees with the position taken by the defense that double jeopardy will attach to
the accusation of subversion, punishable now under Republic Act 1700, as Rule 117 of the
Rules of Court particularly Section 1 thereof, provides:

Time to move to quash — At anytime before entering his plea, the accused
may move to quash the complaint or information.(la)
 In other words, there is no necessity that the accused should be arraigned first before he can
move to quash the information. It is before he pleads which the accused did in this case.

On the other submissions by the prosecution, that the possession of firearms and
ammunitions is not a necessary means of committing the offense of subversion or vice
versa, then if the court follows such argument, there could be no offense of Illegal
Possession of Firearm and Ammunition in furtherance of Subversion, for even the
prosecution admits also that in subversion which is an offense involving propaganda, counter
propaganda, a battle of the hearts and mind of the people does not need the possession or
use of firearms and ammunitions.

The prosecution even admits and to quote:

The defense of double jeopardy. while unquestionably available to the

accused, had not been clearly shown to be invokable(sic) at this point in time.

But the rule says otherwise as previously stated as provided for under Section 1 of Rule 117
of the Rules of Court.

Thus, if ever the accused is caught in possession of a firearm and ammunition which is
separate and distinct from the crime of subversion and is not a necessary ingredient thereof
and the court believed so, the prosecution will have to file another information as they may
wish. The court therefore has to grant the motion to quash on the aforestated grounds,
subject to Section 5 of Rule 117, considering that the only offense to which the accused in
this case may be placed in jeopardy is Subversion and not Illegal Possession of Firearms
and Ammunitions.

The prosecution may file any information as warranted within ten (10) days from receipt of
this order otherwise the court will order the release of the accused, unless he is in custody
for some other offense. 17(Emphasis ours)

Petitioner's motion for reconsideration 18 was also denied in an order dated December 28, 1990. 19

The petitioner elevated the case to the Court of Appeals through a petition for certiorari, docketed as CA-
G.R. SP No. 24273. However, the appellate court found that the trial court did not commit any grave
abuse of discretion amounting to lack or excess of jurisdiction in quashing the questioned Information. In
dismissing the petition, the appellate court, in its decision dated May 27, 1991, basically reiterated the
aforequoted ruling of the trial court.

Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is not in
accord with the law and applicable jurisprudence; and (2) it was deprived of due process to
prosecute and prove its case against private respondent Antonio Tujan in Criminal Case No. 1789.

We agree with the petitioner.

The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866 filed
against private respondent Antonio Tujan. It ruled:

The foregoing information (for Illegal Possession of Firearm and Ammunition in Furtherance
of Subversion) filed before the Makati court shows that the main case is subversion
considering that there is an allegation that the alleged illegal possession of firearms was
 made "in furtherance of or incident to, or in connection with the crime of subversion." Also,
the information alleged likewise that the accused is a member of a communist party of the
Philippines and its front organization. Basically, the information refers to the crime of
Subversion qualified by Illegal Possession of Firearms. . . . 20

The ruling of the Court of Appeals is erroneous.

Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal Case
No. 1789 before the Regional Trial Court of Makati (Branch 148), provides as follows:

Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. — The penalty ofreclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or posses any firearms, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearms, the penalty of
death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.

The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon the owner, president, manager, director or other responsible officer of any
public or private firm, company, corporation or entity, who shall willfully or knowingly allow
any of the firearms owned by such firm, company, corporation or entity to be used by any
person or persons found guilty of violating the provisions of the preceding paragraphs.

The penalty of prision mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor. (Emphasis ours)

The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph of
Section 1, themere possession of an unlicensed firearm or ammunition is the crime itself which
carries the penalty of reclusion temporal in its maximum period to reclusion perpetua. The third
paragraph of the same Section makes the use of said firearm and ammunition "in furtherance of, or
incident to, or in connection with the crimes of rebellion, insurrection or subversion" a circumstance
to increase the penalty to death. Thus, the allegation in the Information in Criminal Case No. 1789
that the unlicensed firearm found in the possession of Antonio Tujan, "a member of the communist
party of the Philippines and its front organization," was used "in furtherance of or incident to, or in
connection with the crime of subversion" does not charge him with the separate and distinct crime of
Subversion in the same Information, but simply describes the mode or manner by which the violation
of Section 1 of P.D. No. 1866 was committed 21 so as to qualify the penalty to death.

There is, therefore, only one offense charged in the questioned information, that is, the illegal
possession of firearm and ammunition, qualified by its being used in furtherance of
subversion. 22 There is nothing in P.D. No. 1866, specifically Section 1 thereof, which decrees
categorically or by implication that the crimes of rebellion, insurrection or subversion are the very acts that
are being penalized. This is clear from the title of the law itself which boldly indicates the specific acts
penalized under it:
 CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES,
AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS
THEREOFAND FOR RELEVANT PURPOSES. (Emphasis ours)

On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case No.
64079, before the Regional Trial Court of Manila (Branch 45), is based on a different law, that is,
Republic Act No. 1700, as amended. Section 3 thereof penalizes any person who "knowingly,
willfully and by overt act affiliates with, becomes or remains a member of a subversive association or
organization . . ." Section 4 of said law further penalizes "such member [of the Communist Party of
the Philippines and/or its successor or of any subversive association] (who) takes up arms against
the Government." Thus, in the present case, private respondent Antonio Tujan could be charged
either under P.D. No. 1866 or R.A. No. 1700, 23 or both.

This leads us to the issue of whether or not private respondent Antonio Tujan was placed in double
jeopardy with the filing of the second Information for Illegal Possession of Firearm and Ammunition
in Furtherance of Subversion.

We rule in the negative.

Article III of the Constitution provides:

Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. (Emphasis ours)

Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court states:

Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense charged, or for
any attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint or
information.

xxx xxx xxx

The right of an accused against double jeopardy is a matter which he may raise in a motion to quash
to defeat a subsequent prosecution for the same offense. The pertinent provision of Rule 117 of the
Revised Rules of Court provides:

Sec. 3. Grounds. — The accused may move to quash the complaint or information on any of
the following grounds:

xxx xxx xxx

 (h) That the accused has been previously convicted or in jeopardy of being convicted, or
acquitted of the offense charged. (2a) (Emphasis ours)

In order that the protection against double jeopardy may inure to the benefit of an accused, the
following requisites must have obtained in the first criminal action: (a) a valid complaint or
information; (b) a competent court; (c) the defendant had pleaded to the charge; 24 and (d) the
defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated
without his express consent. 25

Suffice it to say that in the present case, private respondent's motion to quash filed in the trial court did
not actually raise the issue of double jeopardy simply because it had not arisen yet. It is noteworthy that
the private respondent has not even been arraigned in the first criminal action for subversion. Besides, as
earlier discussed, the two criminal charges against private respondent are not of the same offense as
required by Section 21, Article III of the Constitution.

It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in accordance
with the law and jurisprudence and thus should be reversed.

While we hold that both the subversion charge under R.A. No. 1700, as amended, and the one for
illegal possession of firearm and ammunition in furtherance of subversion under P.D. No. 1866, as
amended, can co-exist, the subsequent enactment of Republic Act No. 7636 on September 22,
1992, totally repealing R.A. No. 1700, as amended, has substantially changed the complexion of the
present case, inasmuch as the said repealing law being favorable to the accused-private
respondent, who is not a habitual delinquent, should be given retroactive effect. 26

Although this legal effect of R.A. No. 7636 on private-respondent's case has never been raised as an
issue by the parties — obviously because the said law came out only several months after the questioned
decision of the Court of Appeals was promulgated and while the present petition is pending with this Court
— we should nonetheless fulfill our duty as a court of justice by applying the law to whomsoever is
benefited by it regardless of whether or not the accused or any party has sought the application of the
beneficent provisions of the repealing law. 27

That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond question. The
repeal by said law of R.A. No. 1700, as amended, was categorical, definite and absolute. There was no
saving clause in the repeal. The legislative intent of totally abrogating the old anti-subversion law is clear.
Thus, it would be illogical for the trial courts to try and sentence the accused-private respondent for an
offense that no longer exists. 28

As early as 1935, we ruled in People vs. Tamayo: 29

There is no question that at common law and in America a much more favorable attitude
towards the accused exists relative to statutes that have been repealed than has been
adopted here. Our rule is more in conformity with the Spanish doctrine, but even in
Spain, where the offense ceases to be criminal, prosecution cannot be had. (1 Pacheco
Commentaries, 296) (Emphasis ours)

Where, as here, the repeal of a penal law is total and absolute and the act with was penalized by a
prior law ceases to be criminal under the new law, the previous offense is obliterated. 30 It is a
recognized rule in this jurisdiction that a total repeal deprives the courts of jurisdiction to try, convict and
sentence persons charged with violation of the old law prior to the repeal. 31

With the enactment of R.A. No. 7636, the charge of subversion against the accused-private respondent
has no more legal basis and should be dismissed.
As regards the other charge of illegal possession of firearm and ammunition, qualified by subversion,
this charge should be amended to simple illegal possession of firearm and ammunition since, as
earlier discussed, subversion is no longer a crime.

Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable under
Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended
Presidential Decree No. 1866, as amended, by eliminating the provision in said P.D. that if the
unlicensed firearm is used in furtherance of subversion, the penalty of death shall he
imposed. 32 Under the new law (R.A. No. 8294), the penalty prescribed for simple illegal possession of
firearm (.38 caliber) is now reduced to prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000.00). 33 The reduced penalty of imprisonment — which is four (4)
years, two (2) months and one (1) day to six (6) years — entitles the accused-private respondent to bail.
Considering, however, that the accused-private respondent has been detained since his arrest on June 5,
1990 up to the present (as far as our record has shown), or more than seven (7) years now, his
immediate release is in order. This is so because even if he were convicted for illegal possession of
firearm and ammunition, the length of his detention while his case is pending has already exceeded the
penalty prescribed by the new law.

WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP
No. 24273, including the orders dated October 12, 1990 and December 28, 1990 of the Regional
Trial Court of Makati (Branch 148), National Capital Region, in Criminal Case No. 1789, are hereby
REVERSED and SET ASIDE.

The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case No.
64079 of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED.

The other Information for illegal possession of firearm and ammunition in furtherance of subversion
against the same accused in Criminal Case No. 1789 of the Regional Trial Court of Makati, Branch
148, is DEEMED AMENDED to Simple Illegal Possession of Firearm and Ammunition. The accused-
appellant is hereby ordered RELEASED IMMEDIATELY from detention for the reason stated above,
unless he is being detained for any other offense.

This decision is IMMEDIATELY EXECUTORY.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing and Purisima, JJ., concur.

Footnotes

1 Penned by then Associate Justice Justo P. Torres, Jr. and concurred in by then
Associate Justice Ricardo J. Francisco and Associate Justice Consuelo Ynares-
Santiago; Annex "N," Petition; Rollo, pp. 95-106.

2 Annexes "E" & "E-1," Petition; Rollo, pp. 32-38.

3 Rollo, p. 39.
4 Annexes "E" & E-1," supra.

5 Ibid.

6 Annex "N," Petition; Rollo, pp. 98-99.

7 Annex "B," Petition; Rollo, p. 27.

8 Annex "C," Petition; Rollo, p. 28.

9 Annex "D," Petition; Rollo, p. 31.

10 Annex "E," Petition; Rollo, p. 32.

11 Rollo, p. 33.

12 Ibid., p. 34.

13 Annex "G," Petition; Rollo, p. 41.

14 Rollo, p. 43.

15 Rollo, p. 43.

16 Annex "H," Petition; Rollo, p. 45.

17 Annex "H," Petition; Rollo, pp. 48-50.

18 Annex "I," Petition; Rollo, p. 51.

19 Annex "J," Petition; Rollo, p. 55.

20 Rollo, p. 99.

21 See Tangan vs. People, et al., No. L-73963, November 5, 1987, 155 SCRA 435,
444.

22 See Misolas vs. Panga, et al., G.R. No. 83341 [En Banc], January 30, 1990, 181
SCRA 648.

23 Ibid., p. 655.

24 Gaspar vs. Sandiganbayan, 144 SCRA 416.

25 People vs. Obsania, 132 Phil. 782, 788; People vs. Santiago, 174 SCRA 143; Ada
vs. Virola, 172 SCRA 336; People vs. Pineda, 219 SCRA 1; People vs. Vergara, 221
SCRA 560; Paulin vs. Gimenez, 217 SCRA 386.

26 Article 22, Revised Penal Code.

 27 See People vs. Simon, G.R. No. 93028, July 29, 1994 (En Banc); 234 SCRA
5555, 570-571, citingPeople vs. Moran, et al., 44 Phil. 387 [1923].

28 People vs. Tamayo, 61 Phil. 225, 227 [1935].

29 Ibid.

30 Ibid.

31 People vs. Sindiong, et al., 77 Phil. 1000; People vs. Jacinto, O.G., November 17,
1958, p. 7585, 7587.

32 Section 1, par. 3, P.D. No. 1866, as amended.

33 Section 1, par. 1, R.A. No. 8294.

6. People v. Lacson, 382 SCRA 365 (2002)

EN BANC

G.R. No. 149453 May 28, 2002

PEOPLE OF THE PHILIPPINES, ET AL.,

vs.
PANFILO M. LACSON

RESOLUTION

Before us is a petition for review on certiorari seeking to reverse and set aside the Decision1 of the
Court of Appeals dated August 24, 2001 in CA-G.R. SP No. 65034. 2 The said Decision of the
appellate court granted respondent Lacson's Second Amended Petition for Prohibition with
application for the issuance of a Temporary Restraining Order, (1) assailing the Order issued by
Judge Herminia Pasamba of the Regional Trial Court (RTC) of Manila, Branch 40, that allowed the
continuation of the re-investigation of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or the
Kuratong Baleleng cases; and (2) praying for the dismissal of Criminal Cases Nos. Q-01-101102 to
Q-01-101112 entitled "People of the Philippines v. Panfilo Lacson, et al." pending before Branch 81
of the RTC of Quezon City.

The following appear in the records of this case:

(1) On May 18, 1995, then PNP Director-General Recaredo Sarmiento II announced, in a press
conference, the killing of eleven (11) members of the Kuratong Baleleng Gang (KBG) in a shootout
with police elements near the fly-over along Commonwealth Avenue, Quezon City at about 4:00
A.M. that day.3

(2) On May 22, 1995, morning papers carried the news that SPO2 Eduardo delos Reyes had
claimed that the killing of the eleven (11) gang members was a "rub-out" or summary execution and
not a shootout.4
(3) In an affidavit he executed the following day, delos Reyes stated, among others, that he was part
of a composite police team called the Anti-Bank Robbery and Intelligence Task Force Group
(ABRITFG) composed of elements of the National Capital Region Command (NCRC) and headed by
Chief Superintendent Jewel Canson; Traffic Management Command, headed by Senior
Superintendent Francisco Subia, Jr.; Presidential Anti-Crime Commission (PACC), headed by Chief
Superintendent Panfilo M. Lacson; Central Police District Command, headed by Chief
Superintendent Ricardo de Leon; and Criminal Investigation Command (CIC), headed by Chief
Superintendent Romeo Acop. Delos Reyes claimed that the police team arrested the eleven (11)
gang members in early morning of May 18, 1995 at the gang's safe house in Superville Subdivision,
Parañaque; that after their arrest, the gang members were made to board two vans, their hands tied
behind their backs, and brought initially to Camp Crame where a decision to summarily execute
them was made, and later to Commonwealth Avenue where they were shot to death by elements of
ABRITFG.5

(4) On May 26, 1995, SPO2 Corazon dela Cruz, another CIC investigator, executed an affidavit
corroborating the material allegations of delos Reyes. Dela Cruz claimed that she was with delos
Reyes from the time the eleven (11) KBG members were arrested up to the time they were killed in
Commonwealth Avenue.6

(5) On May 31, 1995, Armando Capili, a reporter of Remate, executed an affidavit stating that he
was present when the KBG members were arrested in Superville Subdivision. 7

(6) On June 1, 1995, Chief Superintendent Job A. Mayo, PNP Director for Investigation, filed murder
charges with the Office of the Ombudsman against ninety-seven (97) officers and personnel of
ABRITFG. The next-of-kin of the slain KBG members also filed murder charges against the same
officers and personnel.8

(7) Ombudsman Aniano Desierto then created a panel of investigators to conduct a preliminary
investigation of the murder charges. The panel was headed by Deputy Ombudsman for Military
Affairs Bienvenido Blancaflor. On October 20, 1995, the panel issued a resolution recommending the
dismissal of the charges for lack of probable cause.

(8) Ombudsman Desierto referred the resolution for review by a panel composed of Over-all Deputy
Ombudsman Francisco Villa as head, and Special Prosecutor Leonardo Tamayo and Assistant
Ombudsman Abelardo Aportadera as members. On November 20, 1995, the review panel reversed
the Blancaflor resolution and found probable cause for the prosecution of multiple murder charges
against twenty-six (26) officers and personnel of ABRITFG.9

(9) On November 2, 1995, the Ombudsman filed before the Sandiganbayan eleven (11) Informations
for MURDER, docketed as Criminal Cases Nos. 23047 to 23057, against respondent Panfilo M.
Lacson and twenty-five (25) other accused. All twenty-six (26) of them were charged as
principals.10 The following appear to be the victims: Meleubren Sorronda in Crim. Case No. 23047;
Welbor Elcamel in Crim. Case No. 23048; Carlito Alap-ap in Crim. Case No. 23049; Jevy Redillas in
Crim. Case No. 23050; Ray Abalora in Crim. Case No. 23051; Joel Amora in Crim. Case No. 23052;
Alex Neri in Crim. Case No. 23053; Rolando Siplon in Crim. Case No. 23054; Manuel Montero in
Crim. Case No. 23055; Sherwin Abalora in Crim. Case No. 23056; and Pacifico Montero in Crim.
Case No. 23057.

(10) Upon motion of the respondent, the criminal cases were remanded to the Ombudsman for
reinvestigation. On March 1, 1996, Amended Informations were filed against the same twenty-six
(26) suspects but the participation of respondent Lacson was downgraded from principal to
accessory. Arraignment then followed and respondent entered a plea of not guilty. 11
(11) With the downgrading of charges against him, respondent Lacson questioned the jurisdiction of
theSandiganbayan to hear the criminal cases as none of the "principal" accused in the Amended
Informations was a government official with a Salary Grade (SG) 27 or higher, citing Section 2 of R.
A. No. 7975 then prevailing. Accordingly, the Sandiganbayan ordered the cases transferred to the
Regional Trial Court.12

(12) The Office of the Special Prosecutor filed a motion for reconsideration of the transfer. Pending
resolution of the motion, R. A. No. 8249 took effect on February 23, 1997, amending R. A. No. 7975.
In particular, the amendatory law deleted the word "principal" in Section 2 of R. A. No. 7975, thereby
expanding the jurisdiction of the Sandiganbayan to include all cases where at least one of the
accused, whether principal, accomplice or accessory, is a government official of Salary Grade (SG)
27 or higher. The amendment is made applicable to all cases pending in any court in which trial has
not yet begun as of the date of its approval.13

(13) In Lacson v. Executive Secretary,14 respondent Lacson challenged the constitutionality of the
amendment and contended that the Sandiganbayan had no jurisdiction over the criminal cases. This
Court, while dismissing the constitutional challenge, nonetheless ordered the transfer of the criminal
cases to the Regional Trial Court on the ground that the Amended Informations for murder failed to
indicate that the offenses charged therein were committed in relation to, or in discharge of, the
official functions of the respondent, as required by R. A. No. 8249.

(14) Criminal Cases Nos. 23047 to 23057 were raffled off to Branch 81 of the Regional Trial Court of
Quezon City, then presided by Judge, now Associate Justice of the Court of Appeals, Wenceslao
Agnir, Jr., and re-docketed as Criminal Cases Nos. Q-99-81679 to Q-99-81689.

(15) Before the accused could be arraigned, prosecution witnesses Eduardo de los Reyes, Corazon
de la Cruz, Armando Capili and Jane Gomez recanted their affidavits which implicated respondent
Lacson in the murder of the KBG members.

On the other hand, private complainants Myrna Abalora,15 Leonora Amora,16 Nenita Alap-ap,17 Imelda
Montero,18 Margarita Redillas,19 Carmelita Elcamel20 and Rolando Siplon21 also executed their
respective affidavits of desistance declaring that they were no longer interested to prosecute these
cases.22

(16) Due to these developments, the twenty-six (26) accused, including respondent Lacson, filed five
separate but identical motions to (1) make a judicial determination of the existence of probable
cause for the issuance of warrants of arrest; (2) hold in abeyance the issuance of the warrants, and
(3) dismiss the cases should the trial court find lack of probable cause.

(17) The records of the case before us are not clear whether the private offended parties were
notified of the hearing on March 22, 199923 held by Judge Agnir to resolve the motions filed by
respondent Lacson and the other accused.

(18) During the said hearing, the private offended parties who desisted do not appear to have been
presented on the witness stand. In their stead, Atty. Godwin Valdez testified that he assisted them in
preparing their affidavits of desistance and that he signed said affidavits as witness. On the other
hand, Atty. Aurora Bautista of the Philippine Lawyer's League presented the affidavits of recantation
of prosecution witnesses Eduardo de los Reyes, Armando Capili and Jane Gomez. Only prosecution
witness Corazon de la Cruz testified to affirm her affidavit.24

(19) On March 29, 1999, Judge Agnir issued a Resolution25 dismissing Criminal Cases Nos. Q-99-
81679 to Q-99-81689, as follows:
 "As already seen, the documents attached to the Informations in support thereof have been
rendered meaningless, if not absurd, with the recantation of the principal prosecution
witnesses and the desistance of the private complainants. There is no more evidence to
show that a crime has been committed and that the accused are probably guilty thereof.
Following the doctrine above-cited, there is no more reason to hold the accused for trial and
further expose them to an open and public accusation. It is time to write finis to these cases
and lay to rest the ghost of the incident of May 18, 1995 so that all those involved--- the
accused, the prosecution witnesses and the private complainants alike--- may get on with
their lives.

The Court is not unmindful of the admonition in the recent case of People vs. Court of
Appeals (G.R. No. 126005, January 21, 1999) where the Supreme Court said that the
general rule is that 'if the Information is valid on its face and there is no showing of manifest
error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for want of evidence, because evidentiary matters should be presented
and heard during the trial', and that the ruling in Allado vs. Diokno 'is an exception to the
general rule and may be invoked only if similar circumstances are clearly shown to exist.'

This Court holds that the circumstances in the case at bench clearly make an exception to
the general rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for the issuance
of the warrants of arrest against the accused or to hold them for trial. Accordingly, the
Informations in the above-numbered cases are hereby ordered dismissed."

SO ORDERED."26

(20) On March 27, 2001, PNP Director Leandro R. Mendoza indorsed to the Department of Justice
the new affidavits of P/Insp. Ysmael S. Yu and P/S Insp. Abelardo Ramos regarding the Kuratong
Baleleng incident for preliminary investigation. On the strength of this indorsement, Secretary of
Justice Hernando B. Perez formed a panel to investigate the matter. On April 17, 2001, the
respondent was subpoenaed to attend the investigation of Criminal Cases Nos. Q-99-81679 to Q-
99-81689.27

(21) On May 28, 2001, respondent Lacson, et al., invoking, among others, their constitutional right
against double jeopardy, filed a petition for prohibition with application for temporary restraining
order and/or writ of preliminary injunction with the Regional Trial Court of Manila, primarily to enjoin
the State prosecutors from conducting the preliminary investigation. The petition was docketed as
Civil Case No. 01-100933 and raffled to Branch 40, presided by Judge Herminia V. Pasamba. 28

(22) The plea for temporary restraining order was denied by Judge Pasamba in an Order 29 dated
June 5, 2001,viz:

"After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-99-81679 to
Q-99-81689 is not one on the merits and without any recorded arraignment and entered plea
on the part of the herein petitioners. The dismissal was a direct consequence of the finding
of the Quezon City RTC that no probable cause exists for the issuance of warrants of arrest
against petitioners herein and to hold them for trial. The arraignment had with
the Sandiganbayan does not put the case in a different perspective since
theSandiganbayan was adjudged to be without any jurisdiction to try the cases. It is the
People of the Philippines who is the complainant in the Kuratong Baleleng case and remains
to be the complainant in the present investigation initiated thru a letter of PNP Chief
 Mendoza dated March 27, 2001 (Exhibit "B") together with the sworn statements of
witnesses Ramos and Yu (Exhibits "2" and "3" - supportive of the refiling of the case (Exhibit
"9").

xxx xxx xxx

Above considered, this Court finds petitioners have not preliminarily established that they
have a right to be preserved pending hearing on the injunctive relief.

WHEREFORE, the prayer for temporary restraining order is hereby DENIED.

SO ORDERED."30

(23) On June 6, 2001, eleven (11) Informations for murder involving the killing of the same members
of theKuratong Baleleng gang were filed before the Regional Trial Court of Quezon City and were
docketed as Criminal Cases Nos. 01-101102 to 01-101112. The new Informations charged as
principals thirty-four (34) people, including respondent Lacson and his twenty-five (25) other co-
accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. The criminal cases were assigned to
Judge Ma. Theresa L. Yadao.

(24) On the same day, respondent Lacson filed before the Court of Appeals a petition for
certiorari31 against Judge Pasamba, the Secretary of Justice, the PNP Chief, State Prosecutors Ong
and Zacarias, 2nd Assistant City Prosecutor Jamolin, and the People of the Philippines. The said
petition was amended to implead as additional party-respondents State Prosecutor Claro Arellano
and the RTC, Quezon City, Branch 81 in which the Informations in Criminal Cases Nos. 01-101102
to 01-101112 were filed.32

(25) The Second Amended Petition33 dated June 14, 2001 and admitted by the Court of Appeals on
June 26, 2001, alleged:

"The reliefs of certiorari, prohibition and injunction against the questioned Order (Annex A)
and the new Informations in Criminal Cases Nos. 01-101102 to 01-101112 pending before
respondent Yadao (Annex B) are founded upon the grave abuse of discretion by respondent
Judge Pasamba of her discretion in its issuance, the illegality of the proceedings of the
respondent State Prosecutors as they cannot revive complaints which had been dismissed
over two (2) years from the date the dismissal order was issued, and the invalidity of the new
Informations for Murder filed against petitioners and others, all in defiance of law and
jurisprudence as shown by the following:

(a) Respondent judge had ruled on the merits of the main prohibition action a quo rendering
the same moot and academic by concluding that the dismissal of Criminal Cases Nos. Q-99-
81679-Q-99-81689 by the QC RTC was not final and executory, hence [i] the complaints
therein can be reinvestigated, and [ii] petitioner's arraignment while the case had not yet
been remanded to the QC RTC and while the Sandiganbayan had valid jurisdiction thereover
[Criminal Cases No. 23047-2048] was void, notwithstanding that the only issue in the TRO
application was the existence or lack of a valid complaint as defined in S1 and S3, Rule 110.

(b) Respondent Judge ruled that respondent State Prosecutors could proceed to re-
investigate and thereafter file new Informations on June 6, 2001 covering those offenses
subject of Criminal Cases Nos. Q-99-81679-Q-99-81689 on the basis of affidavits filed after
said cases were dismissed on March 29, 1999, despite the fact that under Section 8, Rule
 117, cases similar to those filed against the petitioner and others (where the penalty
imposable is imprisonment of six (6) years or more) cannot be revived after two (2) years
from the date the dismissal order was issued.

(c) Respondent Judge held that the petitioner had not shown a right to be preserved despite
evidence showing the short cuts taken by respondent State prosecutors in re-investigating a
dismissed case, in not complying with Rules in respect of its re-opening, and in insisting that
a valid complaint was filed in clear violation of the Rules and case law thereon, and despite
the fact that the petitioner had shown that an inextendible deadline of June 5, 2001 was
given him to file his counter-affidavit without which his indictment for a non-bailable offense is
assured because of DOJ Secretary Hernando Perez's political schemes."34

(26) In the meantime, on June 8, 2001, respondent Lacson also filed with the RTC-QC Branch 81
(presided by Judge Ma. Theresa Yadao), a Motion for Judicial Determination of Probable Cause and
in the absence thereof, to dismiss the cases outright. Respondent Lacson, however, filed a
Manifestation and Motion dated June 13, 2001 seeking the suspension of the proceedings before
the trial court.35

(27) The Court of Appeals issued a temporary restraining order enjoining Judge Yadao from issuing
a warrant of arrest or conducting any proceeding or hearing in Criminal Cases Nos. 01-101102 to
01-101112.36

(28) On August 24, 2001, the Court of Appeals (Special Third Division), rendered the now assailed
Decision. It characterized the termination of Criminal Cases Nos. Q-99-81679 to Q-99-81689 as
"provisional dismissal," and considered Criminal Cases Nos. 01-101102 to 01-101112 as mere
revivals of the same. Applying Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure,
it dismissed the criminal cases against the respondent, viz:

"In sum, this Court is of the considered view that the subject dismissal of [the] criminal cases
was provisional in nature and that the cases presently sought to be prosecuted by the
respondents are mere revival or re-opening of the dismissed cases. The present
controversy, being one involving "provisional dismissal" and revival of criminal cases, falls
within the purview of the prescriptive period provided under Section 8, Rule 117 of the 2000
Revised Rules of Criminal Procedure. The second paragraph of the said provision is
couched in clear, simple and categorical words. It mandates that for offenses punishable by
imprisonment of more than six (6) years, as the subject criminal cases, their provisional
dismissal shall become permanent two (2) years after the issuance of the order without the
case having been revived. It should be noted that the revival of the subject criminal cases,
even if reckoned from the DOJ's issuance of subpoenas to petitioner, was commenced only
on April 19, 2001, that is, more than two (2) years after the issuance, on March 29, 1999, of
RTC-Quezon City's Resolution, provisionally dismissing the criminal cases now sought to be
revived. Applying the clear and categorical mandate of Section 8, Rule 117, supra, such
efforts to revive the criminal cases are now definitely barred by the two-year prescriptive
period provided therein.

xxx xxx xxx

WHEREFORE, the petition is GRANTED. As prayed for, the Temporary Restraining Order
earlier issued against the conduct of further proceedings in Criminal Cases Nos. 01-101102
to 01-101112, including the issuance of warrants of arrest against the petitioner, PANFILO
M. LACSON, is hereby made PERMANENT. Accordingly, with respect to said accused, the
proceedings conducted by respondent State Prosecutors in respect of the said criminal
 cases are declared NULL AND VOID and the corresponding Informations, docketed as
Criminal Cases Nos. 01-101102 to 01-101112, entitled 'People of the Philippines vs. Panfilo
M. Lacson, et al." and filed before respondent Judge Maria Theresa L. Yadao of Branch 81
of the Regional Trial Court of Quezon City, are hereby ordered DISMISSED.

SO ORDERED."37

The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against the
respondent Lacson involving the killing of some members of the Kuratong Baleleng gang. This rule
which took effect on December 1, 2000 provides:

"SEC. 8. Provisional dismissal.- A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after issuance
of the order without the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall become permanent
two (2) years after issuance of the order without the case having been revived."

Like any other favorable procedural rule, this new rule can be given retroactive effect. However, this
Court cannot rule on this jugular issue due to the lack of sufficient factual bases. Thus, there is need
of proof of the following facts, viz: (1) whether the provisional dismissal of the cases had the express
consent of the accused; (2) whether it was ordered by the court after notice to the offended party, (3)
whether the 2-year period to revive has already lapsed, and (4) whether there is any justification for
the filing of the cases beyond the 2-year period.

There is no uncertainty with respect to the fact that the provisional dismissal of the cases against
respondent Lacson bears his express consent. It was respondent Lacson himself who moved to
dismiss the subject cases for lack of probable cause before then Judge Agnir, hence, it is beyond
argument that their dismissal bears his express consent.

The records of the case, however, do not reveal with equal clarity and conclusiveness whether
notices to the offended parties were given before the cases against the respondent Lacson were
dismissed by then Judge Agnir. It appears from the resolution of then Judge Agnir that the relatives
of the victims who desisted did not appear during the hearing to affirm their affidavits. Their affidavits
of desistance were only presented by Atty. Godwin Valdez who testified that he assisted the private
complainants in preparing their affidavits and he signed them as a witness. It also appears that only
seven (7) persons submitted their affidavits of desistance, namely:

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

 g. Rolando Siplon.

From the records of the case before us, it cannot be determined whether there were affidavits of
desistance executed by the relatives of the three (3)38 other victims, namely: Meleubren Soronda,
Pacifico Montero, Jr., and Alex Neri. The same records do not show whether they were notified of
the hearing or had knowledge thereof. To be sure, it is not fair to expect the element of notice to be
litigated before then Judge Agnir for Section 8, Rule 117 was yet inexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for prohibition with
application for temporary restraining order or writ of preliminary injunction filed by respondent
Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin the prosecutors from
reinvestigating the said cases against him. The only question raised in said petition is whether the
reinvestigation will violate the right of respondent Lacson against double jeopardy. Thus, the issue of
whether or not the reinvestigation is barred by Section 8, Rule 117 was not tackled by the litigants.

Nor was the fact of notice to the offended parties the subject of proof after the eleven (11)
informations for murder against respondent Lacson and company were revived in the RTC of
Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in the case for
respondent Lacson immediately filed a petition for certiorari in the appellate court challenging,
among others, the authority of Judge Yadao to entertain the revived informations for multiple murder
against him.

This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered in the
trial court. It was in the Court of Appeals where respondent Lacson raised for the first time the
argument that Section 8, Rule 117 bars the revival of the multiple murder cases against him. But
even then, the appellate court did not require the parties to elucidate the crucial issue of whether
notices were given to the offended parties before Judge Agnir ordered the dismissal of the cases
against respondent Lacson and company. To be sure, there is a statement in the Decision of the
appellate court to the effect that "records show that the prosecution and the private offended parties
were notified of the hearing x x x."39 It is doubtful whether this finding is supported by the records of
the case. It appears to be contrary to Judge Agnir's finding that only seven (7) of the complainants
submitted affidavits of desistance.

Indeed, the records of this case are inconclusive on the factual issue of whether the multiple murder
cases against respondent Lacson are being revived within or beyond the 2-year bar. The reckoning
date of the 2-year bar has to be first determined - - - whether it is from the date of the Order of then
Judge Agnir dismissing the cases or from the dates the Order were received by the various offended
parties or from the date of the effectivity of the new rule.

If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify
its failure to comply with said timeline. The new rule fixes a timeline to penalize the State for its
inexcusable delay in prosecuting cases already filed in courts. It can therefore present compelling
reasons to justify the revival of cases beyond the 2-year bar.

In light of the lack of or the conflicting evidence on the various requirements to determine the
applicability of Section 8, Rule 117, this Court is not in a position to rule whether or not the re-filing of
the cases for multiple murder against respondent Lacson should be enjoined. Fundamental fairness
requires that both the prosecution and the respondent Lacson should be afforded the opportunity to
be heard and to adduce evidence on the presence or absence of the predicate facts upon which the
application of the new rule depends. They involve disputed facts and arguable questions of law. The
reception of evidence on these various issues cannot be done in this Court but before the trial court.
IN VIEW OF THE FOREGOING, the case at bar is remanded to the RTC - Quezon City, Branch 81
so that the State prosecutors and the respondent Lacson can adduce evidence and be heard on
whether the requirements of Section 8, Rule 117 have been complied with on the basis of the
evidence of which the trial court should make a ruling on whether the Informations in Criminal Cases
Nos. 01-101102 to 01-101112 should be dismissed or not. Pending the ruling, the trial court is
restrained from issuing any warrant of arrest against the respondent Lacson. Melo and
Carpio, JJ., take no part.

SO ORDERED.

Footnotes

1
Penned by Associate Justice Eriberto U. Rosario, Jr. and concurred in by Associate
Justices Conrado M. Vasquez, Jr., Hilarion L. Aquino, and Josefina Guevara-Salonga, with
Associate Justice Buenaventura J. Guerrero dissenting, of the Special Third Division of the
Court of Appeals.

2
Entitled "Panfilo M. Lacson v. Honorable Herminia Pasamba, in her capacity as Presiding
Judge of the Regional Trial Court of Manila (Branch 40); Honorable Ma. Theresa L. Yadao,
in her capacity as Presiding Judge of the Regional Trial Court of Quezon City (Branch 81);
The Secretary of Justice; The Chief, Philippine National Police; Chief State Prosecutor
Jovencito Zuño; State Prosecutors Peter L. Ong, Ruben A. Zacarias, Conrado M. Jamolin;
City Prosecutor of Quezon City Claro Arellano; and the People of the Philippines."

3
Resolution of Judge Wenceslao Agnir, Jr. in Criminal Cases Nos. Q-99-81679 to Q-99-
81689, dated March 29, 1999, p. 1; Annex "A" of the Petition.

4
Id., p. 2.

5
Ibid.

6
Id., p.,3.

7
Ibid.

8
Ibid.

9
Ibid.

10
Ibid, p. 4.

11
Ibid. See also CA Decision dated August 24, 2001, p. 5.

12
Id., p. 5. See also CA Decision, supra note 9, p. 5.

13
Id., p. 6.
14
301 SCRA 298 (1999).

Mother of victims Sherwin Abalora and Ray Abalora in Crim. Cases Nos. 23056 and 23051
15

and redocketed as Q-99-81688 and Q-99-81683, respectively.

16
Mother of victim Joel Amora in Crim. Case No. 23052 and redocketed as Q-99-81684.

17
Wife of victim Carlito Alap-ap in Crim. Case No. 23049 and redocketed as Q-99-81681.

18
Wife of victim Manuel Montero in Crim. Case No. 23055 and redocketed as Q-99-81687.

Mother of victim Hilario Jevy Redillas in Crim. Case No. 23050 and redocketed as Q-99-
19

81682.

20
Wife of victim Welbor Elcamel in Crim. Case No. 23048 and redocketed as Q-99-81680.

21
Relationship with the victim Rolando Siplon in Crim. Case No. 23054 which was
redocketed as Q-99-81686 is not clear.

22
Resolution, supra note 1, p. 9.

23
Id., p.1.

24
Id., pp. 8-9.

25
Ibid.

26
Id., p. 10.

Petition for Review on Certiorari, pp.18-19; See also Annexes "F", "F-1" and "F-2" of the
27

Petition.

28
Ibid.

29
Civil Case No. 01-100933; see Annex to the Petition.

30
Id., at 3-4.

31
Annex "I" of the Petition.

32
Annex "J" of the Petition.

33
Annex "K" of the Petition.

34
Id., pp.13-14.

35
Petition, pp. 23-24.

36
Id., p. 24.
 37
CA Decision, pp. 17-22.

Only three (3) remain unaccounted for as Myrna Abalora desisted for the victims Sherwin
38

Abalora and Rey Abalora.

39
See page 14 of the Decision in CA G.R. SP No. 65034.

People v. Lacson 400 SCRA 267 (2003),

EN BANC

G.R. No. 149453 April 1, 2003

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE

PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY
PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO
ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.

RESOLUTION

CALLEJO, SR., J.:

Before the Court is the petitioners’ Motion for Reconsideration1 of the Resolution2 dated May 28,
2002, remanding this case to the Regional Trial Court (RTC) of Quezon City, Branch 81, for the
determination of several factual issues relative to the application of Section 8 of Rule 117 of the
Revised Rules of Criminal Procedure on the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-
81689 filed against the respondent and his co-accused with the said court. In the aforesaid criminal
cases, the respondent and his co-accused were charged with multiple murder for the shooting and
killing of eleven male persons identified as Manuel Montero, a former Corporal of the Philippine
Army, Rolando Siplon, Sherwin Abalora, who was 16 years old, Ray Abalora, who was 19 years old,
Joel Amora, Jevy Redillas, Meleubren Sorronda, who was 14 years old,3 Pacifico Montero, Jr., of the
44th Infantry Batallion of the Philippine Army, Welbor Elcamel, SPO1 Carlito Alap-ap of the
Zamboanga PNP, and Alex Neri, former Corporal of the 44th Infantry Batallion of the Philippine
Army, bandied as members of the Kuratong Baleleng Gang. The respondent opposed petitioners’
motion for reconsideration.4

The Court ruled in the Resolution sought to be reconsidered that the provisional dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent
as he himself moved for said provisional dismissal when he filed his motion for judicial determination
of probable cause and for examination of witnesses. The Court also held therein that although
Section 8, Rule 117 of the Revised Rules of Criminal Procedure could be given retroactive effect,
there is still a need to determine whether the requirements for its application are attendant. The trial
court was thus directed to resolve the following:

... (1) whether the provisional dismissal of the cases had the express consent of the
accused; (2) whether it was ordered by the court after notice to the offended party; (3)
 whether the 2-year period to revive it has already lapsed; (4) whether there is any
justification for the filing of the cases beyond the 2-year period; (5) whether notices to the
offended parties were given before the cases of respondent Lacson were dismissed by then
Judge Agnir; (6) whether there were affidavits of desistance executed by the relatives of the
three (3) other victims; (7) whether the multiple murder cases against respondent Lacson are
being revived within or beyond the 2-year bar.

The Court further held that the reckoning date of the two-year bar had to be first determined whether
it shall be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates
of receipt thereof by the various offended parties, or from the date of effectivity of the new rule.
According to the Court, if the cases were revived only after the two-year bar, the State must be given
the opportunity to justify its failure to comply with the said time-bar. It emphasized that the new rule
fixes a time-bar to penalize the State for its inexcusable delay in prosecuting cases already filed in
court. However, the State is not precluded from presenting compelling reasons to justify the revival
of cases beyond the two-year bar.

In support of their Motion for Reconsideration, the petitioners contend that (a) Section 8, Rule 117 of
the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-
99-81689; and (b) the time-bar in said rule should not be applied retroactively.

The Court shall resolve the issues seriatim.

I. SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL PROCEDURE IS NOT

APPLICABLE TO CRIMINAL CASES NOS. Q-99-81679 TO Q-99-81689.

The petitioners aver that Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not
applicable to Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the essential requirements
for its application were not present when Judge Agnir, Jr., issued his resolution of March 29, 1999.
Disagreeing with the ruling of the Court, the petitioners maintain that the respondent did not give his
express consent to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-99-81679 to Q-99-
81689. The respondent allegedly admitted in his pleadings filed with the Court of Appeals and during
the hearing thereat that he did not file any motion to dismiss said cases, or even agree to a
provisional dismissal thereof. Moreover, the heirs of the victims were allegedly not given prior
notices of the dismissal of the said cases by Judge Agnir, Jr. According to the petitioners, the
respondent’s express consent to the provisional dismissal of the cases and the notice to all the heirs
of the victims of the respondent’s motion and the hearing thereon are conditions sine qua non to the
application of the time-bar in the second paragraph of the new rule.

The petitioners further submit that it is not necessary that the case be remanded to the RTC to
determine whether private complainants were notified of the March 22, 1999 hearing on the
respondent’s motion for judicial determination of the existence of probable cause. The records
allegedly indicate clearly that only the handling city prosecutor was furnished a copy of the notice of
hearing on said motion. There is allegedly no evidence that private prosecutor Atty. Godwin Valdez
was properly retained and authorized by all the private complainants to represent them at said
hearing. It is their contention that Atty. Valdez merely identified the purported affidavits of desistance
and that he did not confirm the truth of the allegations therein.

The respondent, on the other hand, insists that, as found by the Court in its Resolution and Judge
Agnir, Jr. in his resolution, the respondent himself moved for the provisional dismissal of the criminal
cases. He cites the resolution of Judge Agnir, Jr. stating that the respondent and the other accused
filed separate but identical motions for the dismissal of the criminal cases should the trial court find
no probable cause for the issuance of warrants of arrest against them.
The respondent further asserts that the heirs of the victims, through the public and private
prosecutors, were duly notified of said motion and the hearing thereof. He contends that it was
sufficient that the public prosecutor was present during the March 22, 1999 hearing on the motion for
judicial determination of the existence of probable cause because criminal actions are always
prosecuted in the name of the People, and the private complainants merely prosecute the civil
aspect thereof.

The Court has reviewed the records and has found the contention of the petitioners meritorious.

Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads:

Sec. 8. Provisional dismissal. – A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after issuance
of the order without the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall become permanent
two (2) years after issuance of the order without the case having been revived.

Having invoked said rule before the petitioners-panel of prosecutors and before the Court of
Appeals, the respondent is burdened to establish the essential requisites of the first paragraph
thereof, namely:

1. the prosecution with the express conformity of the accused or the accused moves for a
provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused
move for a provisional dismissal of the case;

2. the offended party is notified of the motion for a provisional dismissal of the case;

3. the court issues an order granting the motion and dismissing the case provisionally;

4. the public prosecutor is served with a copy of the order of provisional dismissal of the
case.

The foregoing requirements are conditions sine qua non to the application of the time-bar in the
second paragraph of the new rule. The raison d’ etre for the requirement of the express consent of
the accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in double jeopardy for the same offense or for an
offense necessarily included therein.5

Although the second paragraph of the new rule states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been revived, the provision
should be construed to mean that the order of dismissal shall become permanent one year after
service of the order of dismissal on the public prosecutor who has control of the prosecution 6 without
the criminal case having been revived. The public prosecutor cannot be expected to comply with the
timeline unless he is served with a copy of the order of dismissal.

Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive,
direct, unequivocal consent requiring no inference or implication to supply its meaning. 7 Where the
accused writes on the motion of a prosecutor for a provisional dismissal of the case No
objection or With my conformity, the writing amounts to express consent of the accused to a
provisional dismissal of the case.8 The mere inaction or silence of the accused to a motion for a
provisional dismissal of the case9 or his failure to object to a provisional dismissal10does not amount
to express consent.

A motion of the accused for a provisional dismissal of a case is an express consent to such
provisional dismissal.11 If a criminal case is provisionally dismissed with the express consent of the
accused, the case may be revived only within the periods provided in the new rule. On the other
hand, if a criminal case is provisionally dismissed without the express consent of the accused or
over his objection, the new rule would not apply. The case may be revived or refiled even beyond
the prescribed periods subject to the right of the accused to oppose the same on the ground of
double jeopardy12 or that such revival or refiling is barred by the statute of limitations. 13

The case may be revived by the State within the time-bar either by the refiling of the Information or
by the filing of a new Information for the same offense or an offense necessarily included therein.
There would be no need of a new preliminary investigation.14 However, in a case wherein after the
provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them
may have recanted their testimonies or may have died or may no longer be available and new
witnesses for the State have emerged, a new preliminary investigation15must be conducted before an
Information is refiled or a new Information is filed. A new preliminary investigation is also required if
aside from the original accused, other persons are charged under a new criminal complaint for the
same offense or necessarily included therein; or if under a new criminal complaint, the original
charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused
is upgraded from that as an accessory to that as a principal. The accused must be accorded the
right to submit counter-affidavits and evidence. After all, "the fiscal is not called by the Rules of Court
to wait in ambush; the role of a fiscal is not mainly to prosecute but essentially to do justice to every
man and to assist the court in dispensing that justice."16

In this case, the respondent has failed to prove that the first and second requisites of the first
paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-
81679 to Q-99-81689. Irrefragably, the prosecution did not file any motion for the provisional
dismissal of the said criminal cases. For his part, the respondent merely filed a motion for judicial
determination of probable cause and for examination of prosecution witnesses alleging that under
Article III, Section 2 of the Constitution and the decision of this Court inAllado v. Diokno,17 among
other cases, there was a need for the trial court to conduct a personal determination of probable
cause for the issuance of a warrant of arrest against respondent and to have the prosecution’s
witnesses summoned before the court for its examination. The respondent contended therein that
until after the trial court shall have personally determined the presence of probable cause, no
warrant of arrest should be issued against the respondent and if one had already been issued, the
warrant should be recalled by the trial court. He then prayed therein that:

1) a judicial determination of probable cause pursuant to Section 2, Article III of the

Constitution be conducted by this Honorable Court, and for this purpose, an order be issued
directing the prosecution to present the private complainants and their witnesses at a
hearing scheduled therefor; and

2) warrants for the arrest of the accused-movants be withheld, or, if issued, recalled in the
meantime until the resolution of this incident.

Other equitable reliefs are also prayed for.18

The respondent did not pray for the dismissal, provisional or otherwise, of Criminal Cases Nos. Q-
99-81679 to Q-99-81689. Neither did he ever agree, impliedly or expressly, to a mere provisional
dismissal of the cases. In fact, in his reply filed with the Court of Appeals, respondent emphasized
that:

... An examination of the Motion for Judicial Determination of Probable Cause and for
Examination of Prosecution Witnesses filed by the petitioner and his other co-accused in the
said criminal cases would show that the petitioner did not pray for the dismissal of the
case. On the contrary, the reliefs prayed for therein by the petitioner are: (1) a judicial
determination of probable cause pursuant to Section 2, Article III of the Constitution; and (2)
that warrants for the arrest of the accused be withheld, or if issued, recalled in the meantime
until the resolution of the motion. It cannot be said, therefore, that the dismissal of the case
was made with the consent of the petitioner. A copy of the aforesaid motion is hereto
attached and made integral part hereof as Annex "A."19

During the hearing in the Court of Appeals on July 31, 2001, the respondent, through counsel,
categorically, unequivocally, and definitely declared that he did not file any motion to dismiss the
criminal cases nor did he agree to a provisional dismissal thereof, thus:

JUSTICE SALONGA:

And it is your stand that the dismissal made by the Court was provisional in nature?

ATTY. FORTUN:

It was in (sic) that the accused did not ask for it. What they wanted at the onset was
simply a judicial determination of probable cause for warrants of arrest issued. Then
Judge Agnir, upon the presentation by the parties of their witnesses, particularly
those who had withdrawn their affidavits, made one further conclusion that not only
was this case lacking in probable cause for purposes of the issuance of an arrest
warrant but also it did not justify proceeding to trial.

JUSTICE SALONGA:

And it is expressly provided under Section 8 that a case shall not be provisionally
dismissed except when it is with the express conformity of the accused.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

And with notice to the offended party.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:
 Was there an express conformity on the part of the accused?

ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any order, or any
statement, which would normally be required by the Court on pre-trial or on other
matters, including other provisional dismissal. My very limited practice in criminal
courts, Your Honor, had taught me that a judge must be very careful on this matter of
provisional dismissal. In fact they ask the accused to come forward, and the judge
himself or herself explains the implications of a provisional dismissal. Pumapayag ka
ba dito. Puwede bang pumirma ka?

JUSTICE ROSARIO:

You were present during the proceedings?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE ROSARIO:

You represented the petitioner in this case?

ATTY. FORTUN:

That is correct, Your Honor. And there was nothing of that sort which the good Judge
Agnir, who is most knowledgeable in criminal law, had done in respect of provisional
dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the
case.

JUSTICE GUERRERO:

Now, you filed a motion, the other accused then filed a motion for a judicial
determination of probable cause?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE GUERRERO:

Did you make any alternative prayer in your motion that if there is no probable cause
what should the Court do?

ATTY. FORTUN:

That the arrest warrants only be withheld. That was the only prayer that we asked. In
fact, I have a copy of that particular motion, and if I may read my prayer before the
Court, it said: "Wherefore, it is respectfully prayed that (1) a judicial determination of
 probable cause pursuant to Section 2, Article III of the Constitution be conducted,
and for this purpose, an order be issued directing the prosecution to present the
private complainants and their witnesses at the scheduled hearing for that purpose;
and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled
in the meantime until resolution of this incident.

JUSTICE GUERRERO:

There is no general prayer for any further relief?

ATTY. FORTUN:

There is but it simply says other equitable reliefs are prayed for.

JUSTICE GUERRERO:

Don’t you surmise Judge Agnir, now a member of this Court, precisely addressed
your prayer for just and equitable relief to dismiss the case because what would be
the net effect of a situation where there is no warrant of arrest being issued without
dismissing the case?

ATTY. FORTUN:

Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is
we did not agree to the provisional dismissal, neither were we asked to sign any
assent to the provisional dismissal.

JUSTICE GUERRERO:

If you did not agree to the provisional dismissal did you not file any motion for
reconsideration of the order of Judge Agnir that the case should be dismissed?

ATTY. FORTUN:

I did not, Your Honor, because I knew fully well at that time that my client had already
been arraigned, and the arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not
take any further step in addition to rocking the boat or clarifying the matter further
because it probably could prejudice the interest of my client.

JUSTICE GUERRERO:

Continue.20

In his memorandum in lieu of the oral argument filed with the Court of Appeals, the respondent
declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan
without jurisdiction over the cases. The records were remanded to the QC RTC: Upon raffle,
the case was assigned to Branch 81. Petitioner and the others promptly filed a motion for
judicial determination of probable cause (Annex B). He asked that warrants for his arrest not
 be issued. He did not move for the dismissal of the Informations, contrary to respondent
OSG’s claim.21

The respondent’s admissions made in the course of the proceedings in the Court of Appeals are
binding and conclusive on him. The respondent is barred from repudiating his admissions absent
evidence of palpable mistake in making such admissions.22

To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-81689 would be to add to or
make exceptions from the new rule which are not expressly or impliedly included therein. This the
Court cannot and should not do.23

The Court also agrees with the petitioners’ contention that no notice of any motion for the provisional
dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the hearing thereon was served
on the heirs of the victims at least three days before said hearing as mandated by Rule 15, Section 4
of the Rules of Court. It must be borne in mind that in crimes involving private interests, the new rule
requires that the offended party or parties or the heirs of the victims must be given adequate a
priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be
served on the offended party or the heirs of the victim through the private prosecutor, if there is one,
or through the public prosecutor who in turn must relay the notice to the offended party or the heirs
of the victim to enable them to confer with him before the hearing or appear in court during the
hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the
requirement of the new rule will become illusory. Such notice will enable the offended party or the
heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion
on valid grounds, including: (a) the collusion between the prosecution and the accused for the
provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b)
attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the
consequent release of the accused from detention would enable him to threaten and kill the offended
party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for
the destruction or loss of the prosecution’s physical and other evidence and prejudice the rights of
the offended party to recover on the civil liability of the accused by his concealment or furtive
disposition of his property or the consequent lifting of the writ of preliminary attachment against his
property.

In the case at bar, even if the respondent’s motion for a determination of probable cause and
examination of witnesses may be considered for the nonce as his motion for a provisional dismissal
of Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims were not
notified thereof prior to the hearing on said motion on March 22, 1999. It must be stressed that the
respondent filed his motion only on March 17, 1999 and set it for hearing on March 22, 1999 or
barely five days from the filing thereof. Although the public prosecutor was served with a copy of the
motion, the records do not show that notices thereof were separately given to the heirs of the victims
or that subpoenae were issued to and received by them, including those who executed their
affidavits of desistance who were residents of Dipolog City or Piñan, Zamboanga del Norte or
Palompon, Leyte.24There is as well no proof in the records that the public prosecutor notified the
heirs of the victims of said motion or of the hearing thereof on March 22, 1999. Although Atty. Valdez
entered his appearance as private prosecutor,25he did so only for some but not all the close kins of
the victims, namely, Nenita Alap-ap, Imelda Montero, Margarita Redillas, Rufino Siplon, Carmelita
Elcamel, Myrna Abalora, and Leonora Amora who (except for Rufino Siplon)26 executed their
respective affidavits of desistance.27 There was no appearance for the heirs of Alex Neri, Pacifico
Montero, Jr., and Meleubren Sorronda. There is no proof on record that all the heirs of the victims
were served with copies of the resolution of Judge Agnir, Jr. dismissing the said cases. In fine, there
never was any attempt on the part of the trial court, the public prosecutor and/or the private
prosecutor to notify all the heirs of the victims of the respondent’s motion and the hearing thereon
and of the resolution of Judge Agnir, Jr. dismissing said cases. The said heirs were thus deprived of
their right to be heard on the respondent’s motion and to protect their interests either in the trial court
or in the appellate court.

Since the conditions sine qua non for the application of the new rule were not present when Judge
Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second
paragraph of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus
revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple
murder against the respondent.

II. THE TIME-BAR IN SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL
PROCEDURE SHOULD NOT BE APPLIED RETROACTIVELY.

The petitioners contend that even on the assumption that the respondent expressly consented to a
provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 and all the heirs of the
victims were notified of the respondent’s motion before the hearing thereon and were served with
copies of the resolution of Judge Agnir, Jr. dismissing the eleven cases, the two-year bar in Section
8 of Rule 117 of the Revised Rules of Criminal Procedure should be applied prospectively and not
retroactively against the State. To apply the time limit retroactively to the criminal cases against the
respondent and his co-accused would violate the right of the People to due process, and unduly
impair, reduce, and diminish the State’s substantive right to prosecute the accused for multiple
murder. They posit that under Article 90 of the Revised Penal Code, the State had twenty years
within which to file the criminal complaints against the accused. However, under the new rule, the
State only had two years from notice of the public prosecutor of the order of dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 within which to revive the said cases. When the new rule
took effect on December 1, 2000, the State only had one year and three months within which to
revive the cases or refile the Informations. The period for the State to charge respondent for multiple
murder under Article 90 of the Revised Penal Code was considerably and arbitrarily reduced. They
submit that in case of conflict between the Revised Penal Code and the new rule, the former should
prevail. They also insist that the State had consistently relied on the prescriptive periods under
Article 90 of the Revised Penal Code. It was not accorded a fair warning that it would forever be
barred beyond the two-year period by a retroactive application of the new rule. 28 Petitioners thus pray
to the Court to set aside its Resolution of May 28, 2002.

For his part, the respondent asserts that the new rule under Section 8 of Rule 117 of the Revised
Rules of Criminal Procedure may be applied retroactively since there is no substantive right of the
State that may be impaired by its application to the criminal cases in question since ‘[t]he State’s
witnesses were ready, willing and able to provide their testimony but the prosecution failed to act on
these cases until it became politically expedient in April 2001 for them to do so.’ 29 According to the
respondent, penal laws, either procedural or substantive, may be retroactively applied so long as
they favor the accused.30 He asserts that the two-year period commenced to run on March 29, 1999
and lapsed two years thereafter was more than reasonable opportunity for the State to fairly indict
him.31 In any event, the State is given the right under the Court’s assailed Resolution to justify the
filing of the Information in Criminal Cases Nos. 01-101102 to 01-101112 beyond the time-bar under
the new rule.

The respondent insists that Section 8 of Rule 117 of the Revised Rules of Criminal Procedure does
not broaden the substantive right of double jeopardy to the prejudice of the State because the
prohibition against the revival of the cases within the one-year or two-year periods provided therein
is a legal concept distinct from the prohibition against the revival of a provisionally dismissed case
within the periods stated in Section 8 of Rule 117. Moreover, he claims that the effects of a
provisional dismissal under said rule do not modify or negate the operation of the prescriptive period
under Article 90 of the Revised Penal Code. Prescription under the Revised Penal Code simply
becomes irrelevant upon the application of Section 8, Rule 117 because a complaint or information
has already been filed against the accused, which filing tolls the running of the prescriptive period
under Article 90.32

The Court agrees with the respondent that the new rule is not a statute of limitations. Statutes of
limitations are construed as acts of grace, and a surrender by the sovereign of its right to prosecute
or of its right to prosecute at its discretion. Such statutes are considered as equivalent to acts of
amnesty founded on the liberal theory that prosecutions should not be allowed to ferment endlessly
in the files of the government to explode only after witnesses and proofs necessary for the protection
of the accused have by sheer lapse of time passed beyond availability.33 The periods fixed under
such statutes are jurisdictional and are essential elements of the offenses covered. 34

On the other hand, the time-bar under Section 8 of Rule 117 is akin to a special procedural limitation
qualifying the right of the State to prosecute making the time-bar an essence of the given right or as
an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State
to prosecute the accused.35

The time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal
Code, a substantive law.36 It is but a limitation of the right of the State to revive a criminal case
against the accused after the Information had been filed but subsequently provisionally dismissed
with the express consent of the accused. Upon the lapse of the timeline under the new rule, the
State is presumed, albeit disputably, to have abandoned or waived its right to revive the case and
prosecute the accused. The dismissal becomes ipso facto permanent. He can no longer be charged
anew for the same crime or another crime necessarily included therein.37 He is spared from the
anguish and anxiety as well as the expenses in any new indictments.38 The State may revive a
criminal case beyond the one-year or two-year periods provided that there is a justifiable necessity
for the delay.39 By the same token, if a criminal case is dismissed on motion of the accused because
the trial is not concluded within the period therefor, the prescriptive periods under the Revised Penal
Code are not thereby diminished.40 But whether or not the prosecution of the accused is barred by
the statute of limitations or by the lapse of the time-line under the new rule, the effect is basically the
same. As the State Supreme Court of Illinois held:

… This, in effect, enacts that when the specified period shall have arrived, the right of the
state to prosecute shall be gone, and the liability of the offender to be punished—to be
deprived of his liberty—shall cease. Its terms not only strike down the right of action which
the state had acquired by the offense, but also remove the flaw which the crime had created
in the offender’s title to liberty. In this respect, its language goes deeper than statutes barring
civil remedies usually do. They expressly take away only the remedy by suit, and that
inferentially is held to abate the right which such remedy would enforce, and perfect the title
which such remedy would invade; but this statute is aimed directly at the very right which the
state has against the offender—the right to punish, as the only liability which the offender
has incurred, and declares that this right and this liability are at an end. … 41

The Court agrees with the respondent that procedural laws may be applied retroactively. As applied
to criminal law, procedural law provides or regulates the steps by which one who has committed a
crime is to be punished. InTan, Jr. v. Court of Appeals,42 this Court held that:

Statutes regulating the procedure of the courts will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent. The fact that procedural statutes may somehow affect the
litigants’ rights may not preclude their retroactive application to pending actions. The
 retroactive application of procedural laws is not violative of any right of a person who may
feel that he is adversely affected. Nor is the retroactive application of procedural statutes
constitutionally objectionable. The reason is that as a general rule no vested right may attach
to, nor arise from, procedural laws. It has been held that "a person has no vested right in any
particular remedy, and a litigant cannot insist on the application to the trial of his case,
whether civil or criminal, of any other than the existing rules of procedure.

It further ruled therein that a procedural law may not be applied retroactively if to do so would work
injustice or would involve intricate problems of due process or impair the independence of the Court.
In a per curiam decision in Cipriano v. City of Houma,43 the United States Supreme Court ruled that
where a decision of the court would produce substantial inequitable results if applied retroactively,
there is ample basis for avoiding "the injustice of hardship" by a holding of nonretroactivity. 44 A
construction of which a statute is fairly susceptible is favored, which will avoid all objectionable,
mischievous, indefensible, wrongful, and injurious consequences.45 This Court should not adopt an
interpretation of a statute which produces absurd, unreasonable, unjust, or oppressive results if such
interpretation could be avoided.46 Time and again, this Court has decreed that statutes are to be
construed in light of the purposes to be achieved and the evils sought to be remedied. In construing
a statute, the reason for the enactment should be kept in mind and the statute should be construed
with reference to the intended scope and purpose.47

Remedial legislation, or procedural rule, or doctrine of the Court designed to enhance and implement
the constitutional rights of parties in criminal proceedings may be applied retroactively or
prospectively depending upon several factors, such as the history of the new rule, its purpose and
effect, and whether the retrospective application will further its operation, the particular conduct
sought to be remedied and the effect thereon in the administration of justice and of criminal laws in
particular.48 In a per curiam decision in Stefano v. Woods,49 the United States Supreme Court
catalogued the factors in determining whether a new rule or doctrine enunciated by the High Court
should be given retrospective or prospective effect:

"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law
enforcement authorities on the old standards, and (c) the effect on the administration of
justice of a retroactive application of the new standards."

In this case, the Court agrees with the petitioners that the time-bar of two years under the new rule
should not be applied retroactively against the State.

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the
accused and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in
fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly
and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It
took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar
fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice.50 The petitioners failed to show a manifest
shortness or insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of the Rules and approved by
the Court en banc primarily to enhance the administration of the criminal justice system and the
rights to due process of the State and the accused by eliminating the deleterious practice of trial
courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused
or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such
revival by the public prosecutor. There were times when such criminal cases were no longer revived
or refiled due to causes beyond the control of the public prosecutor or because of the indolence,
apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the
accused despite the mandate to public prosecutors and trial judges to expedite criminal
proceedings.51

It is almost a universal experience that the accused welcomes delay as it usually operates in his
favor,52especially if he greatly fears the consequences of his trial and conviction. He is hesitant to
disturb the hushed inaction by which dominant cases have been known to expire. 53

The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of
the State to prove its case with the disappearance or nonavailability of its witnesses. Physical
evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage
of time makes proof of any fact more difficult.54 The accused may become a fugitive from justice or
commit another crime. The longer the lapse of time from the dismissal of the case to the revival
thereof, the more difficult it is to prove the crime.

On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate
a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not
derail, the chances of the accused for employment, curtail his association, subject him to public
obloquy and create anxiety in him and his family. He is unable to lead a normal life because of
community suspicion and his own anxiety. He continues to suffer those penalties and disabilities
incompatible with the presumption of innocence.55 He may also lose his witnesses or their memories
may fade with the passage of time. In the long run, it may diminish his capacity to defend himself
and thus eschew the fairness of the entire criminal justice system.56

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the
accused only.

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year
period commenced to run on March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the
new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-
99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the
Court applied the new time-bar retroactively, the State would have only one year and three months
or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-
year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the
State would have two years from December 1, 2000 or until December 1, 2002 within which to revive
the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus
prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful
results in the administration of justice.

The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the
two-year period because the rule prescribing it was not yet in effect at the time and the State could
not be expected to comply with the time-bar. It cannot even be argued that the State waived its right
to revive the criminal cases against respondent or that it was negligent for not reviving them within
the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix
Frankfurter, in Griffin v. People:57
 We should not indulge in the fiction that the law now announced has always been the law
and, therefore, that those who did not avail themselves of it waived their rights ….

The two-year period fixed in the new rule is for the benefit of both the State and the accused. It
should not be emasculated and reduced by an inordinate retroactive application of the time-bar
therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship"
to the State and adversely affect the administration of justice in general and of criminal laws in
particular.

To require the State to give a valid justification as a condition sine qua non to the revival of a case
provisionally dismissed with the express consent of the accused before the effective date of the new
rule is to assume that the State is obliged to comply with the time-bar under the new rule before it
took effect. This would be a rank denial of justice. The State must be given a period of one year or
two years as the case may be from December 1, 2000 to revive the criminal case without requiring
the State to make a valid justification for not reviving the case before the effective date of the new
rule. Although in criminal cases, the accused is entitled to justice and fairness, so is the State. As the
United States Supreme Court said, per Mr. Justice Benjamin Cardozo, in Snyder v. State of
Massachussetts,58 "the concept of fairness must not be strained till it is narrowed to a filament. We
are to keep the balance true." In Dimatulac v. Villon,59 this Court emphasized that "the judge’s action
must not impair the substantial rights of the accused nor the right of the State and offended party to
due process of law. This Court further said:

Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the
accused alone. The interests of society and the offended parties which have been wronged
must be equally considered. Verily, a verdict of conviction is not necessarily a denial of
justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended
and the party wronged, it could also mean injustice. Justice then must be rendered even-
handedly to both the accused, on one hand, and the State and offended party, on the other.

In this case, the eleven informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with
the Regional Trial Court on June 6, 2001 well within the two-year period.

In the sum, this Court finds the motion for reconsideration of petitioners meritorious.

IN THE LIGHT OF ALL THE FOREGOING, the petitioners' Motion for Reconsideration is
GRANTED. The Resolution of this Court, dated May 28, 2002, is SET ASSIDE. The Decision of the
Court of Appeals, dated August 24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The Petition of
the Respondent with the Regional Trial Court in Civil Case No. 01-100933 is DISMISSED for being
moot and academic. The Regional Trial Court of Quezon City, Branch 81, is DIRECTED to forthwith
proceed with Criminal Cases Nos. 01-101102 to 01-101112 with deliberate dispatch.

No pronouncements as to costs.

SO ORDERED.

Davide, Jr., C.J., Mendoza, Panganiban, Austria-Martinez, Corona, Carpio-Morales and Azcuna,
J.J., concur.
Bellosillo, J., see Separate Opinion, concurring.
Puno, J., Please See Disent.
Vitug, J., See Separate (dissenting) Opinion.
Quisumbing, J., In the result; concur with J. Bellosillo's opinion.
Ynares-Santiago, J., I join the dissents of J. Puno & J. Gutierrez.
Sandoval-Gutierrez, J., dissent. Please see my dissenting opinion.
Carpio, J., No part.

Separate Opinion, Concurring

BELLOSILLO, J.:

If we make a mistake, we can only pray that their

ghosts will not haunt us for the rest of our days . . .

"Amen!" I say to the clear and concise ponencia of our colleague, Mr. Justice Romeo J. Callejo Sr.,
who touched the issues head on and resolved them with the calm deliberation of a dedicated jurist.
Let me just add a few more thoughts in the effort to reveal and rectify the hazards and uncertainties
ordinarily concealed by the glib use of formal illogic.

This case springs from the brutal slaughter of suspected members of the Kuratong Baleleng
Gang on 18 May 1995. Eleven (11) restless souls - who perished in a shroud of mystery - remain
shackled for more than half a decade by the bondage of popular apathy and neglect, and
condemned to an ignominious fall by their infamy. Stigmatized and denounced, their demise must
have been hailed by many as the triumph of retributive justice –

x x x x Gifted with the liberty they know not how to use; with a power and energy they know
not how to apply; with a life whose purpose and aim they comprehend not; they drag through
their useless and convulsed existence. Byron destroys them one after the other, as if he
were the executioner of a sentence decreed in heaven. They fall unwept, like a withered leaf
into the stream of time x x x x They die, as they have lived, alone; and a popular malediction
hovers round their solitary tombs.1

The dictates of prudence however would counsel us at this time to reserve judgment on their sins
and transgressions. The overriding consideration is the need to unveil the truth, for truth alone is the
veritable touchstone of justice. The rights of the eleven (11) victims, as much as those of the
respondent and his co-accused, deserve full recognition and protection. Only then can we say that
we are truly civilized - a breed apart from savages.

But the manner by which the carnage of 18 May 1995 was carried out sparked a public indignation
that prompted the Senate Committees on Justice and Human Rights, Crimes and National Defense
and Security to conduct a joint investigation on possible human rights violations involving police
officers. The inquiry focused on the issue of whether the death of the eleven (11) victims was the
result of a "rub-out" or summary killing, or a "shoot-out" or with exchange of gunfire, between the
victims and the police considering that the principal antagonists were policemen and civilians. On 21
June 1995 the aforesaid Senate Committees, in Joint Committee Report No. 1021, found thus -

There is no clarity as to whether the bodies were handcuffed or hogtied with ropes when
they were killed.The evidence, however, establishes that those who died were defenseless
and that except for Soronda, none of them fired a gun. The forensic report and testimonies of
De los Santos and De la Cruz show that eleven (11) persons were killed in coldblood while in
the custody of the law enforcers in the early morning of May 18 in Commonwealth Avenue,
Quezon City (underscoring supplied),
concluded that the killings were done in cold blood and recommended the filing of the appropriate
charges against the police officers.2

Thereafter multiple murder charges were filed by the Ombudsman before

the Sandiganbayan against respondent and twenty-five (25) other police officers, docketed as Crim.
Cases Nos. 23047-23057. On motion of the accused, the Ombudsman conducted a reinvestigation
of the cases resulting in the filing of Amended Informations, this time charging respondent, among
other officers, as a mere accessory after-the-fact. Arraignment followed and respondent entered a
plea of not guilty.

Respondent challenged the jurisdiction of the Sandiganbayan contending in the main that the
highest ranking principal accused under the Amended Informations held the position of Chief
Inspector with a salary below that for Grade 27, for which reason, jurisdiction properly belonged to
the Regional Trial Court and not theSandiganbayan. The issue of jurisdiction eventually reached the
Supreme Court, which ordered the transfer of the cases to the Regional Trial Court of Quezon City
not because the highest ranking principal accused was receiving a salary below Grade 27 but
because the Amended Informations did not show that the offenses charged were committed in
relation to, or in the discharge of, official functions of the accused.

The criminal cases were docketed as Crim. Cases Nos. Q-99-81679 to Q-99-81689, and raffled to
RTC-Br. 81 then presided over by Judge Wenceslao Agnir, Jr. Respondent and the other accused
filed separate but identical motions praying for a judicial determination of probable cause, to hold in
abeyance the issuance of warrants of arrest in the meantime, and to dismiss the cases should the
court find no probable cause.

During the hearing on the motions, the seven (7) or eight (8) victims’ next of kin executed affidavits
of desistance while others recanted their affidavit-complaints. With this development, the trial court in
its Resolution of 29 March 1999 dismissed the cases for lack of probable cause to hold the accused
for trial, holding that "there is no more evidence to show that the crime(s) have been committed and
that the accused are probably guilty thereof."3

Two (2) years later, or on 29 March 2001, Secretary Hernando B. Perez of the Department of Justice
received a letter from PNP Director General Leandro R. Mendoza indorsing for preliminary
investigation the sworn affidavits of two (2) new witnesses relative to the Kuratong Baleleng incident.
Secretary Perez constituted a panel of State Prosecutors to investigate the matter. The panel issued
several subpoenas to all the accused in Crim. Cases Nos. Q-99-81679 to Q-99-81689, including
respondent Lacson, requiring them to submit their counter-affidavits and to appear at the preliminary
conference.

Consequently, on 28 May 2001, respondent and several of his co-accused filed a petition for
prohibition with application for a temporary restraining order and/or preliminary injunction with the
RTC-Manila, seeking to enjoin the Secretary of Justice and the State Prosecutors from further
conducting a preliminary investigation. The prohibition case was raffled to RTC-Br. 40, Manila,
presided over by Judge Herminia V. Pasamba. The filing of this petition notwithstanding, the Panel
of State Prosecutors proceeded to issue a Resolution finding probable cause to hold respondent and
his co-accused for trial, for eleven (11) counts of murder. Accordingly, Informations were filed before
the RTC, Quezon City, and docketed as Crim. Cases Nos. 01-101102 to 01-101112.

Deviating from the normal procedure, the Executive Judge, Vice-Executive Judges and Presiding
Judges of Quezon City dispensed with the customary raffle; instead, assigned the cases to Judge
Ma. Theresa L. Yadao of RTC-Br. 81, Quezon City, presumably as the successor of Judge Agnir in
the same branch.
Meanwhile, in the prohibition case before RTC-Br. 40, Manila, Judge Pasamba denied the prayer for
the issuance of a temporary restraining order thus-

After a study, this Court submits that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-
99-81689 is not one on the merits and without any recorded arraignment and entered plea
on the part of the herein petitioners. The dismissal was a direct consequence of the finding
of the Quezon City Regional Trial Court that no probable cause exists for the issuance of
warrants of arrest against petitioner herein and to hold them for trial. The arraignment had
with the Sandiganbayan does not put the case in a different perspective since the
Sandiganbayan was adjudged to be without any jurisdiction to try the cases. 4

Dissatisfied, respondent elevated the case on a petition for certiorari to the Court of Appeals which
thereafter rendered the assailed Decision of 24 August 2001 granting the petition, declaring null and
void all the proceedings conducted by the State Prosecutors, and ordering all the
criminal Informations dismissed -

The present controversy, being one involving "provisional dismissal" and revival of criminal
cases, falls within the purview of the prescriptive period provided under Section 8, Rule 117
of the 2000 Revised Rules on Criminal Procedure. The second paragraph of the said
provision is couched in clear, simple and categorical words. It mandates that for offenses
punishable by imprisonment of more than six (6) years, as the subject criminal cases, their
provisional dismissal shall become permanent two (2) years after the issuance of the order
without the case having been revived. It should be noted that the revival of the subject
criminal cases x x x was commenced only on April 19, 2001, that is, more than two (2) years
after the issuance, on March 29, 1999, of RTC-Quezon City’s Resolution x x x x 5

Hence, the present recourse. The bone of contention, which crystallizes all the arguments of the
parties into a single point of inquiry, bears upon the nature and effects of a provisional dismissal
which has become permanent after the lapse of the periods provided in Sec. 8, Rule 117,
2000 Revised Rules on Criminal Procedure. For facility of reference, the controversial provision of
Sec. 8 quoted hereunder -

Sec. 8. Provisional dismissal. - A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment x x x of more than six (6)
years, their provisional dismissal shall become permanent two (2) years after issuance of the
order without the case having been revived (italics supplied).

Assuming that Sec. 8, Rule 117, is available to respondent although it is my position that it is not, the
question that should be asked is: Does the provisional dismissal of a criminal case which has
become permanent under Sec. 8 effectively foreclose the right of the State to prosecute an
accused? I have taken great pains analyzing the position of respondent; regretfully, I am unable to
agree for my conscience shivers at its debilitating, crippling if not crushing, impact upon our criminal
justice system.

The basic substantive laws on prescription of offenses are Arts. 90 and 91 of The Revised Penal
Code, which are quoted hereunder -

Art. 90. Prescription of crimes. - Crimes punishable by death, reclusion perpetua or reclusion
temporal shall prescribe in twenty years. Crimes punishable by other afflictive penalties shall
prescribe in fifteen years.
 Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of
those punishable by arresto mayor, which shall prescribe in five years.

The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses shall prescribe in two months

When the penalty fixed by law is a compound one, the highest penalty shall be made the
basis of the application of the rules contained in the first, second and third paragraphs of this
article.

Art. 91. Computation of prescription of offenses. - The period of prescription shall commence
to run from the day on which the crime is discovered by the offended party, the authorities, or
their agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from the Philippine
Archipelago.

Evidently, respondent’s concept of a provisional dismissal that has become permanent under Sec. 8,
Rule 117, emasculates and renders illusory its very purpose. It effectively obliterates the different
prescriptive periods under Art. 90, which are fixed on the basis of the gravity of the penalty
prescribed for the offense, and supplants it with a uniform period of one (1) year or two (2) years, as
the case may be. It likewise substantially modifies the manner of computing the period of
prescription in Art. 91 since the reckoning of the one (1) or two (2)-year prescriptive period under
Sec. 8 is constant and invariable, and without regard to the number of interruptions. Regardless of
the number of times the case against an accused is provisionally dismissed, the prosecution would
always have a full grace period of two (2) years within which to revive the case; much unlike Art. 91
wherein the period consumed prior to the filing of the complaint or information is tacked to the period
consumed after the dismissal of the case for purposes of determining whether the crime has
prescribed.

Interestingly, a dividing line is drawn in the application of Arts. 90 and 91 of The Revised Penal
Code, and Sec. 8, Rule 117, of the 2000 Revised Rules on Criminal Procedure, obviously in an
attempt to lend a delusive semblance of plausibility to its construction of Sec. 8. It is posited that Art.
91 and Sec. 8 operate on "different planes," so to speak, the vital distinction being that Sec. 8, Rule
117, contemplates a situation where a case had already been filed and was provisionally dismissed.

I do not agree. Article 91 of The Revised Penal Code distinctly speaks of "prescription x x x shall be
interrupted by the filing of the complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for
any reason not imputable to him." It can readily be seen therefore that the concept of a provisional
dismissal is subsumed in Art. 91 since in a provisional dismissal, proceedings necessarily terminate
without the accused being convicted or acquitted. Thus, to construe and apply Sec. 8 in the manner
suggested above would undeniably result in a direct and irreconcilable conflict with Art. 91.
In a provisional dismissal, the prosecution, the defense and the offended party, in effect, enter into a
tacit agreement for a temporary cessation of hostilities, i.e., to momentarily hold in abeyance the
prosecution of the accused. Paragraph 1 of Sec. 8 prescribes the requirements thereto: (a) consent
of the accused, and (b) notice to the offended party. It must be remembered however that
permanent dismissal of a case is but an offshoot of its previous provisional dismissal and the
subsequent failure to revive within the time frames set forth in Sec. 8. But does the permanent
dismissal of the case arising from a provisional dismissal affect the right of the State to prosecute
within the periods provided in Art. 90 of The Revised Penal Code? Certainly not, for the prescriptive
periods prescribed by law cannot be affected directly or indirectly by any agreement or consent of
the parties, much less be held hostage to any procedural limitations. Verily, in matters of public
crimes which have a direct bearing on public interest, no agreements or personal arrangements
should be brought to bear upon the penal action.

Courts cannot - by an act of judicial legislation - abridge, amend, alter, or nullify statutes. We do not
sit as councils of revision, empowered to judicially reform or fashion legislation in accordance with
our own notions of prudent public policy. Certainly, lest we are prepared to ride roughshod over this
prerogative of Congress, we cannot interfere with the power of the legislature to surrender, as an act
of grace, the right of the State to prosecute and to declare the offense no longer subject to
prosecution after certain periods of time as expressed in the statute.

Furthermore, the right of the State to prosecute criminals is a substantive, nay, inherent right. To
unduly limit the exercise of such right for a short period of one (1) or two (2) years through the
expedient of a procedural rule is unconstitutional, considering the limitation in our fundamental law
on the rule-making power of this Court, that is, its rules must not "diminish, increase or modify
substantive rights."6

Another decisive factor which militates heavily against the foregoing thesis that Art. 91 and Sec. 8
operate on "different planes," is the fact that the phrase "amounts to an acquittal," which appeared in
the original draft of what is now Sec. 8, Rule 117, was judiciously rejected by the Supreme Court
when it approved the final draft of the2000 Revised Rules on Criminal Procedure -

JUSTICE PANGANIBAN: You know that prior to the wordings at present of Sec. 8, Rule 117,
there was a final committee draft that said and I quote: "the corresponding order shall state
that the provisional dismissal shall become permanent and amount to an acquittal one year
after the issuance without the case having been revived." What I am trying to point out is
that, as originally worded, Section 8 expressly stated that the dismissal would amount to an
acquittal. But the final wording eliminated the words "amount to an acquittal," isn’t it?

ATTY. FORTUN: I would not know that, Your Honor. I have not seen that revised
(interrupted) x x x x

JUSTICE PANGANIBAN: Well, that is true that those words were eliminated precisely
because we wanted to avoid making invocation of that rule equivalent to an acquittal. All
right, (interrupted) x x x x7

Had the intention been to confer on Sec. 8 the effect of acquittal, the Court should have retained the
express provision to that effect in the final draft. Obviously, the conspicuous absence therein of the
phrase "amounts to an acquittal," or its equivalent, forecloses a speculative approach to the meaning
of Sec. 8. Virtually crossed out, such clause cannot now be incised from the original draft and
grafted into the approved draft of the revised rules, without doing violence to its intent.
It must be stressed that Sec. 8 is nothing more than a rule of procedure. As part of the adjective law,
it is only a means to an end - an aid to substantive law - and should accordingly be interpreted and
applied in that concept. It was never meant to modify the settled provisions of law on the matter of
prescription of offenses; or to unduly curtail the right of the State to bring offenders before the bar of
justice. These matters are best left to the wisdom and sound judgment of the legislature.

Section 8 is very limited in scope and application. Justice Oscar M. Herrera, Consultant, Committee
on Revision of the Rules, in his Treatise on Historical Development and Highlights of Amendments
of Rules on Criminal Procedure (Rationale of Amendments of the Revised Rules on Criminal
Procedure), made the following commentaries on the import of the provision -

There had been so many instances where the National Bureau of Investigation or other
police agencies have refused to issue clearances for purposes of employment or travel
abroad, to persons who have pending cases, on the ground that the dismissal of their cases
by the court was merely provisional, notwithstanding the fact that such provisional
dismissals, more often than not, had been done five or ten years ago. This causes prejudice
to the persons concerned. Accordingly, a rule was provided that the provisional dismissal of
offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or
both, shall become permanent one (1) year after issuance of the order without the case
having been revived. With respect to offenses punishable by imprisonment of more than six
(6) years, their provisional dismissal shall become permanent two (2) years after issuance of
the order without the case having been revived.8

Clearly, the feverishly contested provision is purely administrative or regulatory in character. The
policy embodied therein is simply to grant the accused momentary relief from administrative
restrictions occasioned by the filing of a criminal case against him. He is freed in the meantime of the
dire consequences of his having been charged with a crime, and temporarily restored to his
immunities as a citizen, solely for purposes of government clearances. Section 8 imports no intricate
nor ornate legal signification that we need not discern from it a meaning that too far deviates from
what it actually purports to convey.

Indeed, were we to adhere to the thesis equating permanent dismissal with "finality" and "acquittal,"
we would be ascribing meaning to the provision which is not only at war with the demands of reason
but also contrary to the clear intention of the rule. The disastrous effect of respondent’s interpretation
of Sec. 8 upon our criminal justice system is not difficult to imagine. So construed, it would afford an
accused, endowed with a fertile imagination and creativeness, a plethora of opportunities to rig his
prosecution by silencing witnesses and suppressing evidence then letting the case hibernate for a
much shorter period of one (1) or two (2) years. To be sure, our procedural laws could not have
intended to sanction such a result. "A system of procedure," intoned Justice Cardozo, "is perverted
from its proper function when it multiplies impediments to justice without the warrant of a clear
necessity."9

Respondent conjures up the ingenious hypothesis that although Sec. 8 of Rule 117 and the "double
jeopardy" principle have different requisites, they are nonetheless cognate rules since Sec. 8 of Rule
117 affords the accused benefits analogous to that bestowed under the "double jeopardy"
principle.10 Implacable and unyielding is he in the position that a provisional dismissal that attains the
character of permanency produces the effect of a sui generis acquittal. In this respect, according to
him, Sec. 8 of Rule 117 is not in that Sec. 17 (Discharge of Accused to be State Witness) unique
and Sec. 18 unique and Sec. 18 (Discharge of Accused Operates as Acquittal) of Rule 119 of
the 2000 Revised Rules on Criminal Procedure is also invested with the benefits of double jeopardy
when it grants the accused state witness a discharge tantamount to an acquittal. In both instances,
the absence of any or all of the essential requisites of double jeopardy does not preclude the
discharge of the accused state witness or one whose case has attained permanent dismissal.

It bears recalling that since Anglo-Saxon jurisprudence on double jeopardy was swept into the
shores of Philippine constitutional and statutory history, our concept of double jeopardy has faithfully
adhered to the pronouncements first made by Kepner v. United States11 that "x x x (I)t is then the
settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly
rendered, although no judgment be entered on the verdict, and it was found upon a defective
indictment. The protection is not x x x against the peril of second punishment, but against being tried
again for the second offense." The fundamental philosophy that underlies the finality of an acquittal
is the recognition of the fact that the state with its infinite resources and power should not be allowed
to make repeated attempts to convict an individual and expose him to a state of perpetual anxiety
and embarrassment as well as enhancing the possibility that although innocent, he may be found
guilty.

Presently, the 2000 Revised Rules on Criminal Procedure is explicit in its prescription of the
requisites for the invocation of double jeopardy and the resultant effect thereon on acquittals.
Section 7, Rule 117, states-

Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense charged, or for
any attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint or
information.

Ensconced in the foregoing procedural tenet are the imperatives for invoking double jeopardy: (a) a
valid complaint or information; (b) before a court of competent jurisdiction; (c) the defendant had
pleaded to the charge; and, (d) the defendant was acquitted or convicted or the case against him
dismissed or otherwise terminated without his express consent.

In contrast, provisional dismissal under Sec. 8 of Rule 117 requires only the twin requirements of
consent of the accused and notice to the offended party. When a criminal case is provisionally
dismissed upon the express application of the defendant, the dismissal is not a bar to another
prosecution for the same offense because his action in having the case dismissed is a waiver of his
constitutional prerogative of double jeopardy as he, in a manner of speaking, throws a monkey
wrench to the judicial process and prevents the court from rendering a judgment of conviction
against him. Jurisprudence has emphatically enunciated that double jeopardy cannot be properly
invoked where the case was dismissed with the express conformity of the accused. This much is
given as one of the requisites of double jeopardy, i.e., where the accused is acquitted or convicted,
or the case against him dismissed or otherwise terminated without his express consent. This assent
by the accused to the dismissal is the operative act that precludes the effects of double jeopardy
from setting in, so that despite the permanency of the dismissal due to the lapse of the periods set
forth in Sec. 8 of Rule 117, the refiling of a case under a new information does not trample upon this
venerable doctrine.

The permanence of the dismissal should not be understood as the harbinger of final and absolute
liberation of the accused from future prosecution. It merely augurs the demise of the unrevived
cases but it does not prevent the state from exercising the right to re-prosecute the accused within
the prescriptive period provided in Art. 90 of theRevised Penal Code. With more weighty reason can
we not accommodate respondent in his plea to avail of the graces afforded by the doctrine since the
records would show that he has yet to enter his plea to the charges or that the trial on the merits has
as yet to commence.

Respondent also fires a shot in the dark when he suggests that there exists no marked difference
between revivaland refiling of a criminal case as in fact, according to him, the two (2) concepts are
synonymous and interchangeable. A survey of jurisprudential antecedents reveal the distinction
between the revival and refiling of a new information. The authorities are unanimous in their
recognition of the fact that a provisionally dismissed case can be revived as it does not call for the
operation of the rule on double jeopardy and that cases can also be refiled under a new complaint or
information for the same offense. 12

While I agree however that the filing of Crim. Cases Nos. 01-101102 - 01-101112 is NOT a revival of
the earlier dismissed cases, I wish to emphasize, lest I be misconstrued, that the "New Informations"
in the subsequently refiled cases are new not because the respondent is charged thereunder as a
co-principal, instead of as a mere accessory, or that the number of the accused has been increased
from 26 to 34; rather, the new Informationswhich are the bases for the prosecution of the respondent
again under the same offense, are new for the singular reason that they are separate and distinct
from those in the previously dismissed cases. Simply stated, it is not of consequence whether the
allegations in the two (2) sets of Informations are quintessentially identical or different in form and
substance insofar as concerns the right of the state to prosecute the respondent anew after the
provisional dismissal became permanent.

A question may be asked: Suppose that the new information is a verbatim reproduction of the
information in the permanently dismissed case, can we not now say that the newly filed case is a
mere revival of the case previously dismissed? After all, stripped of semantic finery, their being
identical would lead to the impression, although erroneous, that one is but a revival of the other. On
the surface one may see no apparent difference between the two (2) sets of Informations, but a
subtle yet significant functional distinction in fact exists. Once a case is permanently dismissed after
the lapse of the prescriptive periods set forth in Sec. 8, the case is dead and, for all intents and
purposes, beyond resuscitation. All the on-going proceedings and those still to be had, e.g.,
preliminary investigation, arraignment, trial, etc., shall cease and be terminated. In the event
however that the accused is prosecuted anew with the same offense, albeit under an identical
information, the previously terminated proceedings will not be reactivated, the previous case having
been set at rest; instead, new proceedings will be conducted as if the accused has been charged
afresh. To my mind, the foregoing interpretation of Sec. 8, Rule 117 has in its favor the soundest
policy considerations based no less on the fundamental objectives of procedural rules.

Incidentally, I find it particularly disturbing that the Informations in Crim. Cases Nos. Q-99-81679 to
Q-99-81689 were dismissed by the trial judge without complying with one of the requirements of the
first paragraph of Sec. 8, i.e., the dismissal must be with notice to the offended party. There is
nothing in the records which would show that all the offended parties were ever notified that the
cases against respondent and his co-accused would be dismissed. Even if we proceed on the
assumption that the filing of affidavits of desistance by the offended parties may be considered a
substantial equivalent of notice, still the dismissal appears to be procedurally infirm since only seven
(7) of the offended parties representing eight (8) of the eleven (11) victims, executed affidavits of
desistance.13 No similar affidavits were submitted for the three (3) remaining victims.14 Cannot the
next of kin of these three (3) remaining victims, who were not even notified of the provisional
dismissal of the cases, prosecute those responsible for killing them within the prescriptive period
provided in Art. 90 of The Revised Penal Code? Are they now without any remedy in law if witnesses
belatedly surface, they who cowered in fear at the time because of the positions of power held by
those perceived to be responsible therefor?

Significantly also, I am at a loss as to why the Court of Appeals reckoned the two (2)-year period
from 29 March 1999 as the date of issuance of the resolution of dismissal. When Sec. 8 speaks of
"issuance" it should be construed not with reference to the date as appearing in the resolution of
dismissal but on the date it was actually delivered to the proper person and received by him.
Otherwise, how would the offended parties know that such resolution was issued as to reckon with
the two (2)-year period after which the provisional dismissal would be considered permanent?

In the instant case, the records do not clearly identify who the offended parties are, or whether they
were all notified of Judge Agnir's order of dismissal dated 29 March 1999 as they do not even
appear to have been properly named. In the absence of such evidence, the reckoning point for
computing the two (2)-year period under Sec. 8 becomes indeterminable. Assuming that Sec. 8 is
available to respondent, to which we do not even agree, still respondent has failed to discharge his
burden of proving that the two (2)-year period has indeed elapsed to make the provisional dismissal
permanent.

These circumstances cast a heavy pall of doubt on whether the dismissal of the eleven
(11) Informations has indeed attained the status of permanence as to prevent the prosecution from
refiling them. The notice requirement in the first paragraph of Sec. 8 as well as the notice of the
order of dismissal are by no means trivial formalities; they are meaningful and significant. The
offended parties, seeking justice and vindication for the wrong done, would naturally be keenly
interested in the progress and outcome of the criminal prosecution. Hence, it is but proper that all of
them be notified of the termination of the cases and given an equal opportunity to object to the
dismissal.

A view has been expressed that respondent’s rights to speedy trial and to speedy disposition of his
cases were violated; this despite the fact that the right was not invoked by respondent before us.
Accordingly, the twenty-six (26) month delay in the refiling of cases relative to the Kuratong
Baleleng killings is claimed to be vexatious, capricious and oppressive, and hence sufficient to
activate the protection of the Bill of Rights, specifically, on the rights to speedy trial and to speedy
disposition of his cases. Sections 14 (2) and 16, Art. III, of the 1987 Constitution respectively
provides -

Sec. 14. x x x x (2) In all criminal prosecutions, the accused x x x shall enjoy the right x x x to
have a speedy, impartial and public trial x x x x

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.

These provisions uphold the time-honored tradition of speedy justice for, as stated in the oft-
repeated dictum, "justice delayed is justice denied." Their express inclusion in the present
Constitution was in response to the common charge against perennial delays in the administration of
justice which have plagued our judicial system.15

The right to speedy trial under Sec. 14 and the right to speedy disposition of cases in Sec. 16, both
of Art. III, of the 1987 Constitution, are kindred constitutional norms similar in nature and legal
effects, sharing common operational principles, and subject to the same test for purposes of
determining violations thereof. Thus, the cornerstone of both rights is to prevent delays in the
administration of justice by requiring tribunals to proceed with reasonable dispatch in the trial and
disposition of cases.
Speedy disposition of cases, like the constitutional guarantee of speedy trial, is necessarily relative.
It is consistent with delays and depends upon the circumstances of a particular case. 16 Verily, these
rights are more indistinct concepts than other constitutional rights. It is, for example, impossible to
determine with precision when the rights have been denied. We cannot definitely say how long is too
long in a system where justice is supposed to be swift but deliberate. As a consequence, these
rights cannot be quantified into a specified number of days or months. There is no fixed point in the
proceeding when a party may exercise or be deemed to have waived these rights. Finally, the
amorphous quality of the rights sometimes lead to the drastic remedy of dismissal of a case when
the rights have been infringed. This is indeed a serious consequence because it means that an
accused who may be guilty of a grave offense will go scot-free without being tried and held
responsible therefor. Such a remedy is more radical than an exclusionary rule or a reversal for a new
trial.

At any rate, the framers of the Constitution recognized the right to speedy disposition of cases
distinctly from the right to speedy trial in criminal cases. It should be noted that Sec. 16 covers all
phases before, during and after trial, and extends protection to all parties in all types of cases: civil,
criminal and administrative. In this respect, it affords a broader protection than Sec. 14 (2) which
guarantees merely the right to a speedy trial in criminal cases.17

Against this backdrop, I turn to inquire into the parameters of the right to speedy disposition of
cases. Just how broad is its mantle of protection as applied in criminal cases? When does the right
attach during the criminal process, and when may it be properly asserted by a party? A criminal
prosecution has many stages, and delay may occur during or between any of them. As applied in the
instant case, it appears that the speedy disposition guarantee of the Bill of Rights is asserted to
include the period of delay from the provisional dismissal of the case to its revival or refiling since
"respondent is as much entitled to a speedy reinvestigation and refiling of the provisionally dismissed
cases against him."18

Such interpretation, however, does not seem to be in consonance with the unmistakable language,
nor by the obvious intent, of Sec. 16. The provision speaks of "speedy disposition of cases before
all judicial, quasi-judicial, or administrative bodies." It clearly and logically contemplates a situation
wherein there exists an outstanding case, proceeding or some incident upon which the assertion of
the right may be predicated. Evidently, it would be idle, not to say anomalous, to speak of "speedy
disposition of cases" in the absence of anything to dispose of in the first place.

A review of pertinent jurisprudence attests abundantly to the indispensable requirement of a

"pending case, proceeding or some incident," as sine qua non before the constitutional right to
speedy disposition of cases may be invoked. Thus, in Tatad v. Sandiganbayan19 we held that the
long delay of three (3) years in the termination of the preliminary investigation by the Tanodbayan
was violative of the Constitutional right of speedy disposition of cases because political motivations
played a vital role in activating and propelling the prosecutorial process in this case. Similarly
in Duterte v. Sandiganbayan20 involving an inordinate delay in the conduct of preliminary
investigation, we ruled that such unjustified delay infringes upon the right to speedy disposition of
cases.

In Binay v. Sandiganbayan21 we ruled out any violation of petitioner’s right to speedy disposition of
cases despite a six-year delay from the filing of the charges in the Office of the Ombudsman to the
time the Informations were filed in the Sandiganbayan. Then in Dansal v. Fernandez, Sr.22 we
rejected the allegation of inordinate delay interminating the preliminary investigation. Finally,
in Cervantes v. Sandiganbayan23 we held that the inordinate delay of six (6) years by the Special
Prosecutor (succeeding the Tanodbayan) in the filing of the initiatory complaint before he decided to
file an Information for the offense with the Sandiganbayan violated petitioner’s constitutional
guaranty to speedy disposition of the case.

Invariably, the foregoing cases demonstrate that the broad protective cloak of the constitutional right
to speedy disposition of cases becomes available only in instances where preliminary proceedings
have been initiated, or a case has already been filed or any other incident pertaining thereto already
had. As we succinctly stated in Binay v. Sandiganbayan24 -

The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated
only when theproceeding is attended by vexatious, capricious, and oppressive delays; or
when unjustified postponements of the trial are asked for and secured, or when without
cause or unjustifiable motive a long period of time is allowed to elapse without the party
having his case tried (italics supplied).

It goes without saying therefore that the right to speedy disposition of cases is unavailing in the
absence of any proceedings conducted before, during, or after, trial. Significantly, there is no
precedent, for indeed there is none, to support the novel conclusion that even after the dismissal of
the cases, an accused may still invoke the constitutional guarantee.

In the case before us, nothing was left to be done after the issuance of the 29 March 1999 Order of
Judge Agnir dismissing all criminal charges against respondent relative to the Kuratong
Baleleng incident. During the hiatus following the dismissal of the criminal charges, no formal
proceeding remained outstanding. Not even court processes were issued to restrain respondent’s
liberty or subject him to any form of public accusation; he was free to go about his affairs, to practice
his profession, and to continue on with his life. Respondent was legally and constitutionally in the
same posture as though no charges had been made. Hence, it was only at the time when he was
subjected to another pre-indictment investigation and accused anew that respondent may invoke his
right to speedy disposition of his cases. The delay after the charges against him were dismissed, like
any delay before those charges were filed, should not be included in reckoning the time and
determining whether he was denied his right to a speedy disposition of his cases.

The provisional nature of the dismissal of the original criminal cases is quite immaterial. The fact that
the cases were dismissed conditionally or "without prejudice" to the subsequent filing of new cases,
does not make the order of dismissal any less a disposition of the cases. Although provisional, it
nonetheless terminated all proceedings against respondent such that there remained in the
meantime no pending case which the court could act upon and resolve, and which could be made
the basis for the application of the right to speedy disposition of respondent's cases. 25

Clearly, we would be reinventing the wheel, so to speak, if we are to include within the protective
shield of the right to speedy disposition of cases the reinvestigation and refiling of the provisionally
dismissed cases. The matter ofreinvestigation and refiling of cases at some future time are not by
themselves "pending incidents related to the dismissed cases;" they are mere possibilities or
expectancies. The State has no definite decision yet on whether to really commence a
reinvestigation and refiling of the cases, and only indicates, at the most, a probable action at some
future time. Until such time that the State decided to exercise these rights, they cannot ripen into a
pending case, proceeding or incident for purposes of the speedy disposition safeguard.

Certainly, the constitutional pledge mandates merely the swift resolution or termination of a pending
case or proceeding, and not the initiation or institution of a new case or proceeding. It has no
application to inexistent proceedings but only to those currently being undertaken. Were we to hold
otherwise, we would in effect be granting to every accused an unbridled license to impose his will
upon the State and demand that he beimmediately reinvestigated and a case filed against him. The
determination of whether to file or when to file a case lies within the sole discretion of the
prosecution depending upon the availability of his evidence and provided that it is filed within the
prescriptive period. As American Jurisprudence would hold -

It requires no extended argument to establish that prosecutors do not deviate from

"fundamental conceptions of justice" when they defer seeking indictments until they have
probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a
prosecutor to recommend an indictment on less than probable cause. It should be equally
obvious that prosecutors are under no duty to file charges as soon as probable cause exists
but before they are satisfied they will be able to establish the suspect's guilt beyond a
reasonable doubt. To impose such a duty "would have a deleterious effect both upon the
rights of the accused and upon the ability of society to protect itself." From the perspective of
potential defendants, requiring prosecutions to commence when probable cause is
established is undesirable because it would increase the likelihood of unwarranted charges
being filed, and would add to the time during which defendants stand accused but untried x x
x x From the perspective of law enforcement officials, a requirement of immediate
prosecution upon probable cause is equally unacceptable because it could make obtaining
proof of guilt beyond reasonable doubt impossible by causing potentially fruitful sources of
information to evaporate before they are fully exploited. And from the standpoint of the
courts, such a requirement is unwise because it would cause scarce resources to be
consumed on cases that prove to be insubstantial, or that involve only some of the
responsible parties or some of the criminal acts.26

To reiterate, respondent’s right to speedy disposition of his criminal cases attached only at that
precise moment the Department of Justice constituted a panel of prosecutors and conducted a new
preliminary investigation. Even then, the conduct of the prosecutors cannot be assailed as violative
of the speedy disposition guarantee. As shown by the records, the government can hardly be
accused of foot-dragging for, in fact, they lost no time in commencing the new preliminary
investigation and thereafter filing the corresponding Informations in court upon the appearance of
new witnesses against respondent and his co-accused. The expeditious action of the government in
the instant case certainly cannot be viewed with suspicion.

In fairness to petitioners, they cannot be faulted in demonstrating alacrity in performing their

mandate, nor can they be castigated for the so-called "unusual haste" in reopening the cases
against respondent. No impure motive should be imputed to them other than the fact that they
regularly performed their duty in their apparent desire to unravel the Kuratong Baleleng mystery.

For the petitioners, this is a classic case of "damn-if-you-do-and-damn-if-you-don’t" situation.

Petitioners are being put to task for their alleged negligence and delay in reviving the cases, but then
again, they are also being pilloried for persecuting the respondent because of the supposed
"unusual haste" and "uncharacteristic vigor" in pursuing the criminal cases against him and his co-
accused.

For the reasons stated, I decline to extend to respondent the protection guaranteed by Sec. 16. Plain
common sense dictates that the provision cannot be applied to situations not contemplated by it.
Verily, we cannot expand the letter and spirit of the provision and read into it a meaning that is not
there.

This does not, of course, mean that respondent is utterly unprotected in this regard. On the contrary,
there are other constitutional and statutory mechanisms to guard against possible and actual
prejudice to the accused, resulting from the passage of time. Primarily, the statute of limitations
under Art. 90 of The Revised Penal Code is the principal safeguard against prosecuting overly stale
criminal charges. The statute represents legislative assessments of relative interests of the State
and the defendant in administering and receiving justice; it protects not only the accused from
prejudice to his defense, but also balances his interest in repose against society's interest in the
apprehension and punishment of criminals.27 This statute provides predictability by specifying a limit
beyond which there is an irrefutable presumption that the rights of an accused to a fair trial would be
prejudiced.28

The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed
period of time following the occurrence of those acts the legislature has decided to punish by
criminal sanctions. Such a limitation is designed to protect individuals from having to defend
themselves against charges when the basic facts may have become obscured by the passage of
time and to minimize the danger of official punishment because of acts in the far-distant past. Such a
time limit may also have the salutary effect of encouraging law enforcement officials promptly to
investigate suspected criminal activity.29

Moreover, the sweeping command of the Due Process Clause always protects defendants against
fundamentally unfair treatment by the government in criminal proceedings. Procedural fairness
required by due process decrees the dismissal of an indictment if it be shown that delay caused
substantial prejudice to the rights of an accused to a fair trial and that the delay was an intentional
device to gain tactical advantage over the accused.

But even if we proceed on the assumption that respondent may rightfully invoke the speedy
disposition clause for the respondent, still I find that the circumstances of this case fail to measure
up to the criteria set forth under theBalancing Test.

In Caballero v. Alfonso30 we adopted a four-factor Balancing Test to determine whether an accused

has been denied the constitutional right to speedy disposition of his case, i.e., (a) length of the delay,
(b) reason for the delay, (c) assertion of the right or failure to assert it, and, (d) prejudice caused by
the delay.

With these relevant factors, the otherwise abstract concept of speedy disposition of cases is
provided with at least a modicum of structure. The Balancing Test, in which the conduct of both the
prosecution and the defense are considered, prescribes flexible standards based on practical
considerations. It necessarily compels courts to approach speedy disposition cases on an ad
hoc basis. No single factor in the Balancing Test is definitive because all four (4) must be weighed
against the others in determining whether a violation of the right to speedy disposition of cases
occurred. In other words, these factors have no talismanic qualities; courts must still engage in a
difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the
accused, this process must be carried out in full recognition of the accused’s interest in the speedy
disposition of his case as specifically affirmed in the Constitution.31

I proceed to consider the four (4) factors in the Balancing Test in seriatim. The length of delay is to
some extent a triggering mechanism. Until it is shown that the delay has crossed the threshold
dividing ordinary delay from presumptively prejudicial delay, there is no necessity for inquiry into the
other factors that go into the balance.32Considering the serious nature of the charges against
respondent, and more importantly, the criminal cases sought to be filed being deeply impressed with
public interest, involving as they do high ranking police officers, I am of the view that the claimed two
(2) years and three (3) months lag between the provisional dismissal of the first criminal cases on 29
March 1999 and the filing of new Informations on 6 June 2001 sketches below the bare minimum
needed to provoke such an inquiry. At any rate, I will assume, without conceding, that it is sufficiently
long for purposes of triggering a full analysis under the three (3) remaining factors.
The banner the litigants seek to capture is the second factor - the reason the government assigns to
justify the delay. Here too, different weights should be assigned to different reasons. For instance, a
deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily
against the government. A more neutral reason such as negligence or overcrowded courts should be
weighed less heavily. Finally, a valid reason, such as a missing witness, should serve to justify
appropriate delay.33

I find it hard to accept that in the criminal cases against respondent the government is on the wrong
side of the divide between acceptable and unacceptable reasons for delaying the prosecution of
respondent. It simplistically and unrealistically assumes that the availability of witnesses Yu and
Enad prior to 2001 renders the seeming lethargy of the government unjustifiable. It completely
disregards other considerations affecting the decision of the government to stay its entire
prosecutorial machinery.

The government may delay for a variety of reasons such as to gain time in which to strengthen and
document its case. The government may also delay, not with the view of ensuring conviction of the
accused, but because the government lacks sufficient resources to move quickly. The species of
governmental delay that are anathema to the right to speedy disposition of cases are those which
are purposely or negligently employed to harm or gain impermissible advantage over the accused at
the trial. The reason is that, in such circumstance, the fair administration of justice is imperiled.

In the present recourse, there is nothing to demonstrate that the delay in reviving the cases against
respondent was deliberately availed of for an impermissible purpose. It was not explained what
improper tactical advantage was gained or sought by the government; nor can I discern any such
advantage from the records. To be sure, if as claimed by respondent this whole mess is nothing
more than a pure and simple political vendetta, carried out by a possè bent on lynching him
politically and personally - which I am not inclined to acknowledge at this stage - the government
could have moved against respondent with deliberate haste, for delay is not exactly to its best
interest.

Neither can we safely conclude that the public prosecutors are guilty of negligent omission.
Insufficiency of evidence is a legitimate reason for delay. The government is naturally not expected
to go forward with the trial and incur costs unless it is convinced it has an iron-clad case to make a
worthwhile indictment. Verily, it needs time to gather evidence, track down and collect witnesses, as
well as document its case. As to how much time it needs depends on such other factors as the
availability of witnesses and resources to enable it to move quickly. InU.S. v. Lovasco34 it was held -

x x x x investigative delay is fundamentally unlike delay under taken by the Government

solely "to gain tactical advantage over the accused," precisely because investigative delay is
not so one-sided. Rather than deviating from elementary standards of "fair play and
decency," a prosecutor abides by them if he refuses to seek indictments until he is
completely satisfied that he should prosecute and will be able to promptly to establish guilt
beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons
would subordinate the goal of "orderly expedition" to that of "mere speed.

In no mean measure, the many constitutional and procedural safeguards provided an accused can
also present obstacles. It is doubly difficult in this particular case considering the recantation and
disappearance of all available vital witnesses for the prosecution.

If we were to turn the tables against the respondent, we say that the unavailability of the witnesses
for the prosecution may be attributed to the conventional tendency of our people never to antagonize
the powerful and the influential. We are not insinuating that respondent had a hand in the recantation
or desistance of the complainants, or the non-appearance or the shortage of witnesses for the
prosecution; what we are simply saying is that accusing an individual of respondent's stature
naturally engenders fear of physical harm, real or imagined, and can intimidate even the most stout-
hearted and temerarious individuals. This circumstance should have been given weight in resolving
the present controversy.

The third factor - the extent to which respondent has asserted his right to speedy disposition of his
case - further weakens his position. When and how a defendant asserts his right should be given
strong evidentiary weight in determining whether the accused is being deprived of the right. The
more serious the deprivation, the more likely an accused is to complain. But the failure to invoke the
right will make it difficult for an accused to prove that he was denied thereof. 35

I do not think that the vigor with which respondent defended himself in the original cases against
him, and the vigilance with which he assailed the filing of the new Informations now subject of the
instant petition, is the equivalent to an assertion of his right to speedy disposition. The trouble with
this observation is that every accused in a criminal case has the intense desire to seek acquittal, or
at least to see the swift end of the accusation against him. To this end, it is natural for him to exert
every effort within his capacity to resist prosecution. But is it correct to assume that, in every
instance, the accused in resisting his criminal prosecution is also asserting his right to speedy
disposition?

Respondent’s reliance on Sec. 8, Rule 117, of the 2000 Revised Rules on Criminal Procedure,
which some have said is based on the constitutional right to speedy disposition of cases, cannot be
equated with a positive assertion of the right to speedy disposition. A perusal of the records would
reveal that the issue of applicability of Sec. 8, Rule 117, was raised by respondent for the first time
before the Court of Appeals, in his Second Amended Petition - undoubtedly a mere afterthought. It
was not his original position before the trial court, which centered on the "lack of valid ‘complaints’ to
justify a preliminary investigation of cases which had long been dismissed." It was not even his initial
position in the early stages of the proceedings before the Court of Appeals. Within the context of
the Balancing Test, respondent’s tardy, inexplicit and vague invocation of this right makes it
seriously difficult for him to prove the denial thereof.

Finally, the fourth factor is prejudice to the accused. Prejudice, of course, should be assessed in the
light of the interests of accused which the speedy disposition right as well as the speedy trial right
are designed to protect. There are three (3) of such interests: (a) to prevent oppressive pretrial
incarceration; (b) to minimize anxiety and concern of the accused; and, (c) to limit the possibility that
the defense will be impaired.36 Of the three (3), the most significant is the last because the inability of
the defendant to adequately prepare his case skews the fairness of the entire system. 37

Needless to say, respondent was never arrested or taken into custody, or otherwise deprived of his
liberty in any manner. These render the first criterion inapplicable. Thus, the only conceivable harm
to respondent from the lapse of time may arise from anxiety and the potential prejudice to his ability
to defend his case. Even then, the harm suffered by respondent occasioned by the filing of the
criminal cases against him is too minimal and insubstantial to tip the scales in his favor.

Concededly, anxiety typically accompanies a criminal charge. But not every claim of anxiety affords
the accused a ground to decry a violation of the rights to speedy disposition of cases and to speedy
trial. The anxiety must be of such nature and degree that it becomes oppressive, unnecessary and
notoriously disproportionate to the nature of the criminal charge. To illustrate, a prosecution for the
serious crime of multiple murder naturally generates greater degree of anxiety, than an indictment
for, say, simple estafa. The anxiety and the tarnished "reputation and image of respondent who is,
after all, presently and newly elected member of the Senate," does not amount to that degree that
would justify a nullification of the the appropriate and regular steps that must be taken to assure that
while the innocent should go unpunished, those guilty must expiate for their offense. Verily, they pale
in importance to the gravity of the charges and the paramount considerations of seeking justice for
the victims as well as redeeming the sullied integrity and reputation of the Philippine National Police
for their alleged involvement in the perpetration of the ghastly crimes.

We cannot therefore hold, on the facts before us, that the delay in the reinvestigation and refiling of
the criminal cases weighed sufficiently in support of the view that respondent’s right to speedy
disposition of his cases has been violated. The delay simply does not justify the severe remedy of
dismissing the indictments.

Consistent with the views expressed above, I hold that no constitutional, statutory and procedural
impediments exist against the subsequent re-indictment of respondent. Although we are dealing
here with alleged members of the notorious Kuratong Baleleng Gang, against whom society must be
protected, we must bear in mind that they too were human beings with human rights. Indeed, life is
so precious that its loss cannot simply be consigned to oblivion in so short a time. Withal, the
seriousness of the accusations against respondent and other high-ranking officers of the PNP goes
into the very foundation of our law enforcement institutions. We must ferret out the truth: Is the
Philippine National Police so contaminated to the core with corrupt and murderous police officers,
worse than the criminal elements they are trained to exterminate? Let us give the courts a chance to
find out - and more importantly - to absolve respondent and erase any taint in his name, if
innocent. Injustice anywhere is a threat to justice everywhere.

I vote to GRANT the Motion for Reconsideration.

Dissenting Opinion

PUNO, J.:

PRECIS

Our Resolution of May 28, 2002 was the result of a long and exhaustive, nay, exhausting discussion
of the meaning of section 8, Rule 117 of the Revised Rules of Criminal Procedure. As summed up in
the new ponenciaof Mr. Justice Callejo, the Court ruled that section 8, Rule 117 is applicable to the
case at bar. Nonetheless evidence has to be adduced by the parties to prove certain facts which
shall determine whether said section can be beneficially invoked by respondent Lacson. These vital
facts, to quote the new ponencia, are (1) whether the provisional dismissal of the cases had the
express consent of the accused; (2) whether notices to the offended parties were given before the
cases of respondent Lacson were dismissed by then Judge Agnir, Jr.; (3) whether there were
affidavits of desistance executed by the relatives of the three (3) other victims; (4) whether the 2-
year period to revive the cases has already lapsed; (5) whether there is any justification for the re-
filing of the cases beyond the 2-year period; (6) whether the reckoning date of the 2-year bar shall
be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates of
receipt thereof by the various offended parties, or from the date of effectivity of the new rule; and (7)
if the cases were revived only after the 2-year bar, the State must justify its failure to comply with the
said time-bar. Thus, the case at bar was remanded to the RTC-Quezon City, Branch 81 to enable
the parties to adduce evidence on these factual issues. On the basis of the evidence to be
presented, the trial court will rule on the applicability of section 8, Rule 117 to respondent Lacson.

It is noteworthy that except for JJ Melo and Carpio, who inhibited themselves, the resolution was a
unanimous one. The new ponencia now seeks to reverse the unanimous resolution of this Court.
The Court has four new members and the passage of time has put a mist on some of the themes
and sub-themes considered in the discussion of section 8, Rule 117. I wish therefore to restate my
humble understanding of section 8, Rule 117, as chairman of the Committee on Revision of the
Rules of Court that drafted the said rule.

I start with the statement that the Committee was confronted with the following problem:

1. A complaint or information has been filed with a court of competent jurisdiction;

2. The prosecution after a number of settings cannot proceed with the case for some
reasons but usually due to the unavailability of the complainant or witnesses to testify;

3. The accused is ready to proceed but cannot move to dismiss the case and invoke his right
to speedy trial because the delay of the prosecution is not yet unreasonable;

4. As a half-way measure and to relieve himself of the heavy burden of a pending criminal
case, the accused agrees to a provisional dismissal of the complaint or information against
him;

5. Under the rules and case-law prior to year 2000, the provisional dismissal of a criminal
case is open-ended. The case can be revived by the prosecution without any time limit
except when it is already barred by prescription. It is not unusual for the case to be frozen for
an unreasonable length of time. It remains in the docket of the court and contributes to its
clogging. Worse, it hangs like a sword of Damocles over the head of the accused. It can fall
principally depending on the predilection and prejudice of the prosecutor.

First. It was this undesirable situation that the Committee on Revision of the Rules of Court
addressed when it designed section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure.
The Court en banc found no difficulty appreciating the rationale of the new rule for it approved the
rule with but a minor amendment. The amendment lengthened the time within which the prosecution
can revive the provisionally dismissed case in offenses punishable by more than six (6) years of
imprisonment. The time to revive was stretched to two (2) years after a survey was made of offenses
punishable by imprisonment of six (6) years or more and a study of its probable adverse impact on
the government campaign against crimes. In promulgating the new rule, the Court en banc struck a
fine balance between the sovereign right of the State to prosecute crimes and the inherent right of
the accused to be protected from the unnecessary burdens of criminal litigation. The timeline within
which provisionally dismissed cases can be revived forms the crux of the delicate balance.

Second. Section 8, Rule 117 is a rule that gives an accused a new right that is distinct from, among
others, the right to speedy trial and the right against double jeopardy. The resistance to recognize
this new right and the effort to unnecessarily link it with other rights of the accused are the main
causes of its misunderstanding. Thus, section 8, Rule 117 should not be confused with Rule
1191 which is the rule of procedure that implements the constitutional right of an accused to speedy
trial. The confusion can obliterate the difference in the time requirements in the two rules. The right
to speedy trial is determined by a flexible time standard. We resolve claims of denial of the right to
speedy trial by balancing the following factors: (1) the duration of the delay, (2) the reason thereof,
(3) the assertion of the right or failure to assert it by the accused, and (4) the prejudice caused by
such delay. On the other hand, the timeline that restricts the right of the State to revive a case in a
section 8, Rule 117 situation is inflexible if it is shown that it has slept on its right without reason.
Section 8, Rule 117 should not also be confused with section 3(i), Rule 117 which is the rule of
procedure that protects the constitutional right of an accused against double jeopardy. Again, the
two rules are distinct, hence, it is not proper to require the element of prior plea in double jeopardy
cases in a section 8, Rule 117 situation. In fine, section 8, Rule 117 is a new rule that is complete by
itself and should not be construed in light of rules implementing other rights of an accused.

Third. The provisional dismissal under section 8 of Rule 119 becomes permanent after the lapse of
one or two years depending on the gravity of the offense involved. There can be no hedging on the
meaning of the word permanent for the new rule used the word without a bit of embroidery. To be
emphatic, the lapse of the one (1) or two (2) years time puts a period to the provisionally dismissed
case and not a mere comma. It is true that during the deliberations of the Committee, the provision
was originally worded as follows: "The corresponding order shall state that the provisional dismissal
shall become permanent and amount to acquittal one (1) year after its issuance without the case
having been revived." In the final version of the provision, however, the phrase "amount to acquittal"
was deleted. The deletion was dictated by the belief that the phrase was a redundancy in light of the
clear and unequivocal import of the word "permanent." The deletion cannot be distorted to mean that
a case permanently dismissed can still be revived. For if that were the intent, the rule could have
easily stated that the accused whose case has been permanently dismissed could nevertheless be
prosecuted for the same offense.

Fourth. The permanent dismissal of an unrevived case under section 8, Rule 117 does not unduly
shorten the prescriptive period of offenses provided for in Articles 90 and 91 of the Revised Penal
Code. The new rule merely regulates the conduct of the prosecution of an offense once the case is
filed in court. It cannot be doubted that after a case is filed in court, its conduct by the prosecution
can be regulated by rules of procedure which are within the exclusive power of this Court to
promulgate. More specifically, the new rule regulates the time when the State must complete
the prosecution of a pending case after its provisional dismissal. It provides the consequence when
the State sleeps on its duty to revive a provisionally dismissed case. If the State loses the right to
continue the prosecution of an offense already filed in court, it is not because the rule has amended
the prescriptive period of the crime provided by our substantive law. Rather, it is a simple case
where the State forfeited its right to prosecute by its own inaction, an inaction that unless justified
cannot be allowed to further impair the rights of an accused.

Fifth. The permanent dismissal under section 8, Rule 117 precludes the prosecution of the accused
for the same offense under a new information. Again, it is true that we have rulings to the effect that
a trial court may, in the interest of justice, dismiss a case provisionally but without prejudice to
reinstating it before the order of dismissal becomes final or without prejudice to the subsequent filing
of a new information for the same offense. But note should be taken of the important fact that these
rulings were handed down before section 8, Rule 117 came into being. Section 8, Rule 117 changed
the old rule that dismissals which are provisional in character lack the imprimatur of finality, hence,
they do not bar the revival of the offense charged or the filing of a new information for the same
offense. The old rule was precisely jettisoned by the Committee and by this Court because of its
unfairness to the accused. Again, I respectfully submit that the new rule would be useless if it would
leave unfettered the discretion of the prosecutor in reviving the same offense under the fig leaf of a
new information.

Sixth. I do not share the thesis that the re-filing of Criminal Cases Nos. Q-01-101102 to Q-01-
101112 is not a revival of Criminal Cases Nos. Q-99-81679 to Q-99-81689. There cannot be any
dispute on the meaning of the word revival in section 8, Rule 117. Revival means reanimating or
renewing the case that has become dormant because of its provisional dismissal. The cases that
were provisionally dismissed for lack of probable cause refer to the eleven (11) Informations for
murder filed against the respondent, et al., allegedly for the summary execution of some members of
the Kuratong Baleleng gang. Without doubt, these are the same cases re-filed against the
respondent after another preliminary investigation with the principal difference that respondent is
now charged as a principal and no longer as an accessory.

I respectfully submit that the test to determine whether a case can be revived is not whether a new
preliminary investigation has been conducted by the prosecution. That test, if allowed, would torture
out of context the intent of section 8, Rule 117. The new rule speaks of "case" and "offenses." It
clearly prohibits the revival of the caseagainst an accused which has been provisionally dismissed
for failure of the State to continue its prosecution without any justification. I like to underscore
that the prohibition against revival is not a free gift by the State to an accused. The right against
revival is the result of a trade-off of valuable rights for the accused can exercise it only if he
surrenders his right to an early permanent dismissal of the case against him due to the inability of
the State to prosecute. In so doing, the accused suffers a detriment for he gives the State one to two
years to revive a case which has already been frozen for failure to prosecute. During this waiting
period, the accused cannot move to dismiss the charge against him while the State can locate its
missing witnesses, secure them if they are threatened and even gather new evidence. In exchange
for this period of grace given to the State, the rule sets a timeline for the prosecutors to revive the
case against the accused. The timeline is fixed for the accused has suffered an indubitable
detriment and the trade-off for this detriment is the duty imposed on the prosecution either to
continue or discontinue with the case within the 1 or 2-year grace period. We cannot allow the undue
extension of this detriment unless the State can show compelling reasons to justify its failure to
prosecute. The open-ended practice under the old rule which makes provisional dismissal
permanently provisional is precisely the evil sought to be extirpated by section 8, Rule 117.

Seventh, I wish to stress the bigger reason for section 8, Rule 117. The new rule does enhance the
constitutional rights of an accused to speedy trial and speedy disposition of the case(s) against
him but it is much more than that. More broadly, the new rule was designed to achieve one of the
end-goals of the criminal process - - - to minimize the burdens of accusation and litigation. This end-
goal is well explained by La Fave and Israel, conceded authorities in Criminal Procedure, viz:2

"(d) Minimizing the Burdens of Accusation and Litigation. Even though eventually acquitted,
an innocent person charged with a crime suffers substantial burdens. The accusation casts a
doubt on the person’s reputation that is not easily erased. Frequently, the public remembers
the accusation and still suspects guilt even after an acquittal. Moreover, even where an
acquittal is accepted as fully vindicating the accused, it hardly remedies other costs suffered
in the course of gaining that verdict. The period spent by the accused awaiting trial
commonly is filled with a substantial degree of anxiety and insecurity that disrupts the daily
flow of his life. That disruption is, of course, even greater if he is incarcerated pending trial.
The accused also must bear the expense and ordeal of the litigation process itself."

This end-goal is by no means novel. We have various rules of criminal procedure to minimize the
burdens of litigation. Our rules on bail, venue, double jeopardy, speedy trial, speedy disposition of
cases, etc., are among them. In fine, we have been promulgating rules to minimize the burdens of
litigation for a long, long time.

Let me also underscore that section 8, Rule 117 was promulgated in the exercise of the expanded
power of this Court to enact rules of procedure under section 5(5) of the 1987 Constitution, viz:

"SEC. 5. The Supreme Court shall have the following powers:

 xxx xxx xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court."

This provision3 expanded the rule making power of this Court for (1) it extended its power not only to
cover pleading, practice and procedure in all courts, admission to the practice of law and the
integration of the Bar but also to encompass the protection and enforcement of constitutional rights
and legal assistance to the underprivileged, and (2) it no longer contained the restriction that said
rules "may be repealed, altered or supplemented by the Batasang Pambansa." 4 As aforediscussed,
section 8, Rule 117 was designed to diminish the burdens of litigation by fixing a timeline on
provisional dismissal of cases beyond which they cannot be revived. The regulation of the conduct of
a criminal case once filed in court, including the time within which it must be terminated, is inherent
in judicial power. Section 8, Rule 117 is an exercise of this power, a power that this Court has
exercised without any question since the 1935 Constitution.

II

The dismissal of the cases against respondent Lacson bears his express consent

This Court did not err when it ruled "that the provisional dismissal of the case against respondent
Lacson bears his express consent."

The records will show that respondent Lacson filed before then Judge Agnir, Jr. who was to try
Criminal Cases Nos. Q-99-81679 to Q-99-81689, a motion for judicial determination of probable
cause. The motion contained the following prayer:

"x x x xxx xxx

(1) a judicial determination of probable cause pursuant to section 2, Article III of the
Constitution be conducted by this Honorable Court, and for this purpose, an order be issued
directing the prosecution to present the private complainants and their witnesses at a
hearing scheduled therefore; and

(2) warrants for the arrest of the accused-movants be withheld, or, if issued recalled in the
meantime until the resolution of this incident.

Other equitable reliefs are also prayed for."5

In ruling that the dismissal of the cases against respondent Lacson did not bear his consent,
the ponencia states that "x x x respondent merely filed a motion for judicial determination of probable
cause x x x."6 It emphasizes that no motion for provisional dismissal of the cases was filed. With due
respect, the effort to distinguish the two motions is futile for it is seeking a distinction when there is
no difference. The essence of both motions is the lack of probable cause of the Informations. If the
motions succeed, there is only one course of action for the judge to take --- to dismiss the
Informations. For all intents and purposes, a motion for judicial determination of probable cause can
be treated as a motion to dismiss for lack of probable cause. Thus, Judge Agnir, Jr. prefaced the
resolution of respondent Lacson’s motion in this wise:

"Before the Court are five (5) separate but identical motions filed thru their respective
counsel by the twenty-six (26) accused in the above numbered cases, praying the Court to
(1) make a judicial determination of the existence of probable cause for the issuance of
warrants of arrest, (2) to hold in abeyance the issuance of warrants in the meantime, and (3)
to dismiss the cases should the court find lack of probable cause."

Prescinding from this understanding, then Judge Agnir, Jr. issued his Resolution dismissing Criminal
Cases Nos. Q-99-81679 to Q-99-81689, viz:

"As already seen, the documents attached to the Informations in support thereof have been
rendered meaningless, if not absurd, with the recantation of the principal prosecution
witnesses and the desistance of the private complainants. There is no more evidence to
show that a crime has been committed and that the accused are probably guilty thereof.
Following the doctrine above-cited, there is no more reason to hold the accused for trial and
further expose them to an open and public accusation. It is time to write finis to these cases
and lay to rest the ghost of the incident of May 18, 1995 so that all those involved--- the
accused, the prosecution witnesses and the private complainants alike--- may get on with
their lives.

The Court is not unmindful of the admonition in the recent case of People vs. Court of
Appeals (G.R. No. 126005, January 21, 1999) where the Supreme Court said that the
general rule is that ‘if the Information is valid on its face and there is no showing of manifest
error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts
should not dismiss it for want of evidence, because evidentiary matters should be presented
and heard during the trial’, and that the ruling in Allado vs. Diokno ‘is an exception to the
general rule and may be invoked only if similar circumstances are clearly shown to exist.’

This Court holds that the circumstances in the case at bench clearly make an exception to
the general rule.

WHEREFORE, in view of the foregoing, the Court finds no probable cause for the issuance
of the warrants of arrest against the accused or to hold them for trial. Accordingly, the
Informations in the above-numbered cases are hereby ordered dismissed."

SO ORDERED." (emphasis supplied)

To justify his ruling, the ponente insists that "respondent did not pray for the dismissal, provisional or
otherwise, of Criminal Cases Nos. Q-99-81679 to Q-99-81689, neither did he ever agree, impliedly
or expressly, to a mere provisional dismissal of the case."7 With due respect, the specific prayer
demanded by the ponente is unnecessary. Under Rule 112, section 6 of the 2000 Rules of Criminal
Procedure, the judge may "immediately dismiss the case if the evidence on record clearly fails to
establish probable cause." Likewise, the motion for judicial determination of probable cause prayed
for "other equitable reliefs." Similarly, there need not be any agreement on the provisional character
of the dismissal of the said cases. The cases were dismissed not on the merits but for lack of
probable cause and before the arraignment of respondent Lacson. Their dismissal was provisional
by operation of our rules.

The ponencia then cites certain judicial "admissions" by the counsel of respondent Lacson to the
effect that they did not move to dismiss the Informations against said respondent nor agree to their
provisional dismissal. Again with due respect, these so called "admissions" should be taken in their
proper context. These "admissions" were made in the course of the proceedings before the Court of
Appeals. The parties then were arguing that the re-filing of the cases will violate the rule on double
jeopardy. Naturally, respondent Lacson took the position that his right against double jeopardy would
be violated, hence, he was insisting that the dismissal of the cases was without his express consent.
Naturally too, the petitioner took the opposite view that the rule on double jeopardy would not be
breached because respondent consented to their dismissal. If the ponencia will hold respondent
Lacson to his "admission" that he did not consent to the dismissal of his cases, it should similarly
hold petitioner to its "admission" that respondent consented to the dismissal of the cases against
him. In truth, the evidentiary rule on admission governs the act, declaration or omission of a party as
to a relevant fact and should not be applied on arguments of parties. The issue in the case at bar is
the nature and effect of a motion for judicial determination of probable cause- - - i.e., whether or not
it can be treated by a motion to dismiss on the ground of lack of probable cause. The issue is
basically legal, and should be resolved in accordance with our laws and not on the basis of the
arguments of parties which are often twisted to serve their peculiar interests.

III

It is not clear whether the offended parties had knowledge of the dismissal
of their Informations against respondent Lacson

In our resolution under reconsideration, we explained why there is uncertainty on the factual issue of
whether notices were sent to the offended parties, viz:

"x x x

The records of the case, however, do not reveal with conclusiveness whether notices to the
offended parties were given before the cases against the respondent Lacson were dismissed
by Judge Agnir. It appears from the resolution of Judge Agnir that the relatives of the victims
who desisted did not appear during the hearing. Their affidavits of desistance were only
presented by Atty. Godwin Valdez who testified that he assisted the private complainants in
preparing their affidavits and he signed them as a witness. It also appears that only seven
(7) persons submitted their affidavits of desistance, namely:

a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora;

b. Carmelita Elcamel, wife of Wilbur Elcamel;

c. Leonora Amora, mother of victim Joel Amora;

d. Nenita Alap-ap, wife of victim Carlito Alap-ap;

e. Imelda Montero, wife of victim Manuel Montero;

f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and

g. Rolando Siplon

From the records of the case before us, it cannot be determined whether there were
affidavits of desistance executed by the relatives of the three (3) other victims, namely:
Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri. The same records do not show
 whether they were notified of the hearing or had knowledge thereof. To be sure, it is not fair
to expect the element of notice to be litigated before then Judge Agnir for Section 8, Rule
117 was yet inexistent at that time.

The fact of notice to the offended parties was not raised either in the petition for prohibition
with application for temporary restraining order or writ of preliminary injunction filed by
respondent Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin the
prosecutors from reinvestigating the said cases against him. The only question raised in said
petition is whether the reinvestigation will violate the right of respondent Lacson against
double jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8,
Rule 117 was not tackled by the litigants.

Nor was the fact of notice to the offended parties the subject of proof after the eleven (11)
informations for murder against respondent Lacson and company were revived in the RTC of
Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in the
case for respondent Lacson immediately filed a petition for certiorari in the appellate court
challenging, among others, the authority of Judge Yadao to entertain the revived
informations for multiple murder against him.

This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered
in the trial court. It was in the Court of Appeals where respondent Lacson raised for the first
time the argument that Section 8, Rule 117 bars the revival of the multiple murder cases
against him. But even then, the appellate court did not require the parties to elucidate the
crucial issue of whether notices were given to the offended parties before Judge Agnir
ordered the dismissal of the cases against respondent Lacson and company. To be sure,
there is a statement in the Decision of the appellate court to the effect that "records show
that the prosecution and the private offended parties were notified of the hearing x x x." It is
doubtful whether this finding is supported by the records of the case. It appears to be
contrary to Judge Agnir’s finding that only seven (7) of the complainants submitted affidavits
of desistance." (emphases supplied)

The ponencia will reverse this ruling on the following ratiocination:

"In the case at bar, even if the respondent’s motion for a determination of probable cause
and examination of witnesses may be considered for the nonce, as his motion for a
provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs
of the victims were not notified thereof prior to the hearing on said motion on May 22, 1999. It
must be stressed that the respondent filed his motion only on May 17, 1999 and set it for
hearing on May 22, 1999 or barely five days from the filing thereof. Although the public
prosecutor was served with a copy of the motion, the records do not show that notices
thereof were separately given to the heirs of the victims or that subpoenae were issued to
and received by them including those who executed their affidavits of desistance who were
residents of Dipolog City or Piñan, Zamboanga del Norte or Palompon, Leyte. There is as
well no proof in the records that the public prosecutor notified the heirs of the victims of said
motion or of the hearing thereof on May 22, 1999. Although Atty. Valdez entered his
appearance as private prosecutor, he did so only for some but not all the close kins of the
victims, namely, Nenita Alap-ap, Imelda Montero, Margarita Redillas, Rufino Siplon,
Carmelita Elcamel, Myrna Abalora, and Leonora Amora who (except for Rufino Siplon)
executed their respective affidavits of desistance. There was no appearance for the heirs of
Alex Neri, Pacifico Montero, Jr. and Meleubren Sorronda. In fine, there never was any
attempt on the part of the trial court, the public prosecutor and/or the private prosecutor to
notify all the heirs of the victims of the respondent’s motion and the hearing thereon. The
 said heirs were thus deprived of their right to be heard on the respondent’s motion and to
protect their interests." (emphasis supplied)

Again, I beg to disagree. The ponencia cites the records of the cases to justify its conclusion that
notices were not sent to the offended parties. I cannot be as dogmatic as the ponente. As stated in
our Resolution, section 8, Rule 117 was not yet in existence when then Judge Agnir, Jr. resolved
respondent Lacson’s motion for judicial determination of probable cause. It is, therefore, unrealistic
to look only at the records of the cases to determine compliance with yet an inexistent rule. To my
mind, what ought to be done is to determine whether the offended parties had knowledge of
respondent Lacson’s motion for judicial determination of probable cause. They may have such
knowledge despite lack of formal notice from the court or notice from the public and private
prosecutors. It ought to be beyond argument that such a formal notice is only one source of
knowledge of the offended parties. Moreover, there is the unresolved question of who are the
"offended" parties in the case at bar. It will be noted that in some of the criminal cases dismissed by
then Judge Agnir, Jr., those who executed affidavits of desistance were the wives, or the mothers of
the victims. Are they the only "offended" parties or should the other "heirs" be included? Should all of
them be notified? These and other questions should first be resolved by the trial court, hence, our
resolution to remand.

IV

Section 8, Rule 117 of the Rules of Criminal Procedure

applies retroactively

The ponencia correctly holds that section 8, Rule 117 of the 2000 Rules of Criminal Procedure is not
a statute of limitations. As postulated in the précis, the one-year or two-year bar is a special
procedural rule qualifying the right of the State to prosecute cases already filed in court. The time-
bar under the new rule does not curtail the periods under Article 90 of the Revised Penal Code. The
State retains the full period under Article 90 of the Revised Penal Code within which to secure the
necessary evidence and file the appropriate criminal cases against the accused. But once the State
files a criminal case and involves the courts, the constitutional power of this Court to set the rules of
procedure for the prosecution of cases cannot be doubted. The power belongs to this Court alone
and there are no uncertain umbras and penumbras in its parameters which other branches of the
government can claim.

To emphasize, the time-bar for the revival of provisionally dismissed cases was adopted for the
purpose, among others, of (1) discouraging hasty and baseless filing of criminal cases; and (2)
penalizing the State for itsinexcusable delay in prosecuting cases already filed in court. The non-
revival of provisionally dismissed cases after the lapse of the one-year or two-year period creates a
disputable presumption of inexcusable delay on the part of the State in prosecuting the case. But
this does not mean that the mere passage of the one-year or two-year period bars the State from
reviving the provisionally dismissed cases. The State has the right to present compelling reasons to
justify the revival of the cases beyond the one-year or two-year time bar. The reservation of this right
should remove any charge of unfairness to the State.

Regrettably, the ponencia concedes that section 8, Rule 117 of the 2000 Rules of Criminal
Procedure is a procedural rule but holds that it could not be applied retroactively. It is unreasonably
struck by the fear that its retroactive application would cause "injustice or hardship to the State and
adversely affect the administration of justice in general and of criminal laws in particular." It contends
that the period from March 30, 1999 to November 30, 1999 should be excluded in the computation of
the two-year period because the new rule prescribing it was then not yet in effect.
Again, I beg to disagree. Jurisprudence that has resisted the tempest of time teaches us that
statutes and rules should be construed in the light of the purposes to be achieved and the evils
sought to be remedied. The unerring principle that ought to guide any attempt to construe them
should be their intended scope and purpose.8 In the case at bar, it is crystal clear that the new rule is
intended to apply to all provisionally dismissed cases before its passage. It is a remedial measure to
check the continuing inaction on the part of the State to prosecute pending cases in court. Its
purpose is to press the State to act on cases it has inexcusably put in deep slumber in our courts of
justice. It provides relief to the accused who are prejudiced when the cases filed in court against
them remain dormant for an unreasonable length of time. In fine, the new rule is a remedial rule that
looks back even as it looks forward. It reaches both the past and the future. It is both retrospective
and prospective.

To be sure, there is nothing novel in the new rule when it reaches the past. Under the ruling case
law, statutes regulating the procedure of courts are applicable to actions pending and undetermined
at the time of its passage.9 The retroactive application of procedural rules cannot be challenged as
violative of any right of a person who may feel that he is adversely affected. The reason is that as a
general rule, no vested right may attach to, nor give rise from, procedural laws. 10

The only conceivable exception to this general rule is if the retroactive application of the procedural
rule "would not be feasible or would work injustice."11 As amply demonstrated, however, the new rule
will not impair the right of the State to prosecute criminals. The State is not prejudiced by the time-
bar if it can justify its delay in the prosecution of cases. If it cannot justify its delay, it cannot complain
of unfairness. No government can claim the right to prosecute at its perpetual pleasure. It cannot file
a criminal case and sleep on it. It is self-evident that inexcusable delays in the prosecution of a case
deny an accused the right to a fair trial.

With due respect, I submit that the ponencia sends a wrong message in batting only for the
prospective application of the new rule. To hold that the State could not be faulted for not reviving
the case within two years simply because the new rule was not yet in effect implies that this Court
sanctions delays in the prosecution of cases, however inexcusable the delays were. Pushed to the
extreme, the majority in effect bars the application of the new rule to cases provisionally dismissed
five or ten years ago on the simple reason that during theinterregnum, the new rule was not yet in
effect. Let us not half pause in applying the new rule for it addresses inexcusable delays in the
prosecution of cases already filed in court. Devoid of legalese, it tells the State not to sleep on its
job. If we cannot tell the prosecution to do its job within a reasonable time frame, we might as well
close shop.

IN VIEW OF THE FOREGOING, I vote to DENY petitioners’ Motion for Reconsideration.

Separate Opinion

VITUG, J.:

Petitioners argue that while Section 8, Rule 117, of the Rules of Criminal Procedure bars the revival
of a case upon the lapse of the one-year period or the two-year period, as the case may be, after its
provisional dismissal, the rule, however, does not contain any proscription against the filing of a new
information involving the same incident so long as it is done within prescriptive period of the offense
provided in Article 90 and Article 91 of the Revised Penal Code or such as may otherwise be
expressed by statute.
Prescription of crimes pertains to the loss or waiver by the State of its right to prosecute an act
prohibited and punished by law.1 It is the policy of the law that prosecutions should be prompt and
that statutes enforcing that promptitude should be maintained, these provisions being not merely
acts of grace but checks imposed by the State upon itself "to exact vigilant activity from its
subalterns and to secure for criminal trials the best evidence that can be obtained." 2 Once a criminal
case is instituted, the issue on prescription is addressed and the rule on prescription as a
substantive provision would have then so served its purpose. Thenceforth, assuming the timely filing
of the case, the rules of procedure promulgated by the Supreme Court must govern. In fine, while
Article 90 and Article 91 of the Revised Penal Code fix the period when the State must file a case
against an accused after the discovery of the crime by the offended party, Section 8, Rule 117, of
the Rules of Criminal Procedure, however, applies once an action has been instituted. The
substantive provisions govern the institution of the case; the procedural rules steps in thereafter. The
Supreme Court is vested by the Constitution with the power to "promulgate rules concerning x x x
pleading, practice, and procedure in all courts."3 The 1987 Charter not only has deleted the authority
of the legislature to repeal, alter or supplement the rules promulgated by the Court but it also
expanded the Court’s rule-making power to cover the protection and enforcement of constitutional
rights.4Pursuant to this Constitutional mandate, the Supreme Court has incorporated Section 8, Rule
117, in the Rules of Criminal Procedure, viz:

"SEC. 8. Provisional dismissal. – A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.

"The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both, shall become permanent one (1) year after issuance
of the order without the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall become permanent
two (2) years after issuance of the order without the case having been revived."

In this regard, I share the conclusions reached by my esteemed colleague, Justice Reynato S. Puno,
that there are yet a number of factors that must first be established and considered mainly
evidentiary, before this Court can appropriately rule on the applicability of Section 8, Rule 117, of the
Rules of Criminal Procedure.

Dissenting Opinion

SANDOVAL-GUTIERREZ, J.:

I find petitioners’ motion for reconsideration of our Resolution dated May 28, 2002 bereft of merit.
The cases filed against respondent Senator Panfilo M. Lacson should be DISMISSED on the
grounds that his constitutional right to speedy trial and speedy disposition of cases has been violated
and that the filing of new Informations against him constitutes persecution.

Also, I maintain that Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure, an
implementing Rule of the right to speedy trial and speedy disposition of cases, applies to
respondent’s cases upon a showing before the trial court that its requirements have been complied
with.

I. Respondent’s constitutional right to speedy trial and speedy disposition of his cases has been
violated.
Statutes cannot be effective to place any limitation on a person’s constitutional right, 1 and therefore
they should not be regarded as a definition of the constitutional provision. 2 It is thus conceivable that
the constitutional provision is violated although its implementing statute is not. 3 This is because
constitutions are not adopted to control the rights and procedures of the moment but to establish
broad principles of justice and fair play for all time.4

The present controversy brings into focus the novel provision, Section 8, Rule 117 of the 2000
Revised Rules of Criminal Procedure, which reads:

"Sec. 8. Provisional Dismissal. – A case shall not be provisionally dismissed except with the
express consent of the accused and with notice to the offended party.

"The provisional dismissal of offenses punishable by imprisonment not exceeding six (6)
years or a fine of any amount, or both shall become permanent one (1) year after issuance
of the order without the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall become permanent
two years after issuance of the order without the case having been revived."(Emphasis
supplied)

In our Resolution now being challenged by petitioners in their Motion for Reconsideration, we held
that the above Rule is inapplicable to the cases of respondent because the records fail to show that
its requirements have been complied with. These requirements as applied to his cases are: the
provisional dismissal by the Regional Trial Court, Branch 81, Quezon City of Criminal Cases Nos. Q-
99-81679 to 89 against respondent must have been with his express consent and with notice to the
offended parties; and the reckoning date of the two-year period within which to revive the cases
should have been properly determined. Consequently, in the same Resolution, we remanded the
case at bar to the trial court to enable the parties to adduce evidence on whether the said
requirements have been complied with on the basis of which the trial court should rule on whether
the newly filed Criminal Cases Nos. 01-101102 to 01-101112 against respondent should be
dismissed or not.

In petitioners’ Motion for Reconsideration, they contend that the retroactive application of Section 8,
Rule 117 violates the people’s right to due process; and that for lack of express consent of
respondent and prior notice to the offended parties, the Rule does not apply to his cases.

The novelty of Section 8, Rule 117 somehow shades the more important issue of whether
respondent’s constitutional right to speedy trial and disposition of cases has been violated.

Section 8 of Rule 117 was promulgated pursuant to the constitutional guarantee of speedy trial and
speedy disposition of cases. Clearly, there can be no automatic inference that because Section 8
was found to be inapplicable, as claimed by petitioners, respondent’s right to speedy trial and
speedy disposition of his cases was not violated. Lest we miss the forest for the trees, extreme
caution should be exercised so that the general terms of the constitutional guarantee would not be
lost in the specific and detailed provisions of the rules promulgated for its enforcement.

Speedy trial is said to constitute not a privilege,5 but a right, one that is recognized as fundamental. It
is one of the most basic and inviolable rights.6 Thus, enshrined in our Constitution is the mandate
that "in all criminal prosecution, the accused shall enjoy the right to a speedy trial." 7 To expedite not
only the trial stage but also the disposition of the case itself, the framers of our Constitution saw the
need to further provide that "all persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial or administrative bodies."8
The crusade towards a speedy justice did not stop in the Constitution. To supplement it and to
render its guarantee more effective, Congress enacted Republic Act No. 8493 (Speedy Trial Act of
1998) which aims to ensure a speedy trial of all criminal cases before the Sandiganbayan, Regional
Trial Courts, Metropolitan Trial Courts and Municipal Circuit Trial Courts. For its part, this Court
promulgated Circular No. 39-98 for the purpose of implementing the provisions of RA 8493. And
when the 2000 Revised Rules of Criminal Procedure was drafted, substantial portions of RA 8493
and Circular No. 39-98 were included therein, thus:

Section 1 (g) of Rule 116 – Unless a shorter period is provided by special law or Supreme
Court circular, the arraignment shall be held within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused. The time of the pendency or a motion to
quash or for a bill of particulars or other causes justifying suspension of the arraignment shall
be excluded in computing the period.

Section 1 of Rule 119 – After a plea of not guilty is entered, the accused shall have at least
fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from
receipt of the pre-trial order.

Section 2 of Rule 119 -- Trial once commenced shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable period of time for good
cause.

The Court shall, after consultation with the prosecutor and defense counsel, set the case for
continuous trial on a weekly or other short-term trial calendar at the earliest possible time so
as to ensure speedy trial.In no case shall the entire trial period exceed one hundred eighty
(180) days from the first day of trial, except as otherwise authorized by the Supreme Court.

And still, to achieve speedy trial and speedy disposition of cases, this Court promulgated Section 8,
Rule 117.

The foregoing laws and rules are merely tools to enforce the constitutional guarantee. They do not
constitute its "definition." It bears reiterating that just because Section 8, Rule 117 is found to be
inapplicable does not ipso facto indicate that there is no violation of the right to speedy trial and
speedy disposition of cases. The laws and rules, which are just legislative construction or application
of the pervasive constitutional guarantee must be construed fairly in view of the right they seek to
enforce. They cannot be considered to have a limiting effect on the constitutional guarantee.
Significantly, the 2000 Revised Rules of Criminal Procedure is not silent on the matter. Section 10,
Rule 119 specifically states:

SEC. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. – No
provision of law on speedy trial and no rule implementing the same shall be interpreted as a
bar to any charge of denial of the right to speedy trial guaranteed by section 14 (2), Article III,
of the 1987 Constitution.

Ultimately, whether the constitutional guarantee of speedy trial has been complied with is still a
judicial question to be answered in the light of the circumstances of each particular case and guided
by the principle that the proceedings were free from vexatious, capricious and oppressive
delays.9 Our case law is rich with doctrines setting the parameters of the right to speedy trial and the
right to speedy disposition of cases. In the recent case of People vs. Leviste,10 we reiterated our
ruling that the right to speedy trial is violated only where there is an unreasonable, vexatious and
oppressive delay without the participation or fault of the accused, or when unjustified postponements
are sought which prolong the trial for unreasonable length of time.
On the other hand, in Caballero vs. Alfonso, Jr.11 we laid down the guidelines in determining the
applicability of the "speedy disposition" formula. There, we held that speedy disposition of cases is a
relative term. Just like the constitutional guarantee of "speedy trial," "speedy disposition of cases" is
a flexible concept. It is consistent with delays and depends upon the circumstances. What the
Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights
nugatory.

Years of serious deliberation yield certain factors to be considered in the determination of whether or
not the right to a speedy trial and speedy disposition of cases has been violated. These are: 1)
length of delay; 2) reason for the delay; 3) assertion of the right or failure to assert it; and 4)
prejudice caused by the delay.12 These factors are effective in balancing the interest of the State and
the accused.

Records show that the period between the dismissal of Criminal Cases Nos. Q-99-81679 to 89 and
the refiling of the new Informations docketed as Criminal Cases Nos. 01-101102 to 01-101112, is
two (2) years and two (2) months. It may be recalled that Criminal Cases Nos. Q-99-81679 to 89
were dismissed on March 29, 1999.13 The Department of Justice (DOJ) re-investigated the cases
only upon its receipt on March 29, 2001 of General Leandro Mendoza’s letter indorsing the affidavits
of P/S Ins. Abelardo Ramos and P/ Ins. Ysmael Yu. On June 6, 2001, new Informations were filed
against respondent. Petitioners justify the belated re-investigation on the ground that prior to the
appearance of Ramos and Yu, the government had no evidence to sustain the refiling of the
cases.14 They also claim that due to respondent’s close association with Former President Joseph
Estrada and his position then as PNP Chief, the witnesses were deterred from coming out with the
truth.15

The justifications raised by petitioners are contrary to the records. As early as July 1999, Yu
executed an affidavit attesting to the very same facts contained in his March 24, 2001
affidavit.16 Another witness, Mario Enad, also executed his affidavit as early as August 8,
1995.17 Petitioners have never claimed that these two were unwilling to testify on earlier dates. Also,
nowhere in their affidavits is a statement that they were afraid of testifying against respondent
because he is a friend of the Former President or was a PNP Chief. The two even mentioned the
names of other witnesses whom petitioners could have utilized in an earlier re-investigation. Clearly,
what glares from the records is that from the time of the dismissal of Criminal Cases Nos. Q-99-
81679 to 89, there was an unjustified interval of inactivity of more than two (2) years on the part of
the prosecution.

Petitioners cannot argue that respondent failed to assert his right to speedy trial and speedy
disposition of cases. While we have ruled that if an accused wants to exercise his constitutional right
to a speedy trial, he should ask, not for the dismissal, but for the trial of the case, 18 however, the
same cannot be expected of respondent. It would be ludicrous for him to ask for the trial of his cases
when the same had already been dismissed. During the interval, there were no incidents that would
prompt him to invoke the right. Indeed, the delay could only be attributed to the inaction on the part
of the investigating officials.19

Neither can petitioners argue that the right to speedy trial is inapplicable since the charges have
been dismissed. As explained by Justice Marshall, the anxiety brought by public prosecution does
not disappear simply because the initial charges are temporarily dismissed. After all, the government
has revealed the seriousness of its threat of prosecution by initially bringing
charges.20 Consequently, when the government has already investigated and charged an accused, it
is in a much better position and properly shoulders a greater responsibility to reinvestigate and re-
prosecute him with reasonable promptness. Sadly, this was not done in this case. In Cervantes vs.
Sandiganbayan,21 we upheld the accused’s right to speedy disposition of his case notwithstanding
his alleged failure to take any step to assert his right, thus:

"We cannot accept the Special Prosecutor’s ratiocination. It is the duty of the prosecutor to
speedily resolve the complaint, as mandated by the Constitution, regardless of whether the
petitioner did not object to the delay or that the delay was with his acquiescence provided
that it was not due to causes directly attributable to him."

Generally, the question of how much lapse of time is consistent with the constitutional guarantee of
speedy trial and speedy disposition of cases varies with the particular circumstances. There is no
constitutional basis for holding that the right to a speedy trial can be quantified into a specified
number of days and months.22 The mere passage of time is not sufficient to establish a denial of a
right to a speedy trial, but a lengthy delay, which is presumptively prejudicial, triggers the
examination of other factors to determine whether rights have been violated.23 In a case, it has been
held that a delay of more than one (1) year is presumptively prejudicial and shifts the burden to the
government to justify the delay.24 Certainly, the two-year delay here is prejudicial to respondent and it
should be taken against petitioners, they having failed to show any good cause or reason for such
delay.

Another factor to be considered in determining whether respondent’s right to a speedy trial and
disposition of cases has been violated is the prejudice to him. In his comment, he states:

"x x x (i) he had every reason to believe that the sword of Damocles which had hang atop his
head by virtue of the filing of the original charges in 1995 had been obliterated by their
dismissal in 1999 as he has the right to Due Process and to be rid of the paranoia of being
harassed for charges by the Republic and to indict him for heinous offenses and subject him
to a non-bailable action disenfranchises eight (8) Million or so voters who had put him in
office as their representative, (ii) it smacks of oppression as petitioner DOJ Secretary had
filed or instigated new cases against him for an undisclosed political agenda, (iii) his
detractors, including petitioner DOJ Secretary, have the capacity to influence the litigation
including the investigation and prosecution thereof, (iv) it is plainly a vindictive action
perpetrated by a PNP Senior Superintendent whom petitioner had accused of kidnapping for
which he was punished and sent to the National Penitentiary until he was recently released
and re-assumed a post as Intelligence Chief under the current administration, and (v)
respondent is now the subject of persecution and not prosecution."25

There is no denying that the filing of new Informations against respondent had caused him undue
prejudice. Almost eight (8) years have elapsed since November 21, 1995,26 the date the original
Informations were filed, and more than three (3) years have passed since Criminal Cases Nos. Q-
99-81679 to 89 were dismissed on March 29, 1999. It is therefore reasonable for respondent to
expect that by this time, petitioners would finally give him peace of mind. In Licaros vs.
Sandiganbayan,27 we ruled that the delay in the disposition of the case had caused "much prejudice,
distress and anxiety to petitioner whose career as bank executive and businessman has suffered the
stigma of being shackled to an unresolved criminal prosecution, virtually hanging like a Damocles’
sword over his head for more than a decade." There, we stressed the consequences and problems
inherent in protracted litigation which include, among others, the stagnant professional growth,
hampered travel opportunities and a besmirched reputation. It cannot be said that respondent does
not suffer the same consequences now.

Prejudice does not only consist of impairment of the accused’s ability to defend himself, it may also
include other sufferings, such as anxiety and stigma.28 Respondent is not an ordinary citizen. He is a
Senator who has a reputation to protect. The publicity caused by the refiling of new Informations
undoubtedly tainted his name. Moreover, he has to defend himself constantly from the nagging
accusations that interfere in the performance of his duties as a Senator.

I believe that the prosecution now of respondent is tantamount to persecution.

While it is the policy of this Court not to interfere in the exercise of the prosecutors’ discretion,
however, it cannot tolerate a refiling of new Informations, as in this case, at the impulse of the
officials in command. The prosecution of an accused must not be made to depend on who is
perceived as an enemy by those who sit in power but on the sacrosanct duty of prosecutors to bring
to justice those believed to be offenders of the law while ensuring that their rights under the
Constitution remain inviolable.

The sudden over-eagerness of petitioners to prosecute respondent, to my mind, is not really an

indicum of competence, it is a clear example of persecution. This was not overlooked by the Court of
Appeals which held:

"x x x Apparently, hints of persecution are manifest in the case of petitioner. For one, though
earlier accused as an accessory in the original multiple murder cases, petitioner is now
charged as a principal in the recent revival of the criminal cases – obviously to preclude any
opportunity on his part to evade incarceration by seeking bail. Persecution is likewise
apparent in the hurried pace at which the preliminary investigation of the subject criminal
cases was completed by respondent prosecutors and in the immediate and abrupt filing of
the Informations against petitioners in only a matter of days after the original petition had
been filed in this Court."29

Petitioners ought to be reminded of the caveat in Tatad vs. Sandiganbayan30 that "prosecutors
should not allow and should avoid giving the impression that their noble office is being used or
prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the
basic and fundamental objective of serving the interest of justice evenhandedly, without fear or favor
to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty." Their undue
haste in conducting the preliminary investigation of the 26 accused and their inordinate interest to re-
file the cases hurriedly raise a quizzical eyebrow.

Not to be glossed over is the fact that the preliminary investigation which resulted in the filing of new
Informations was initiated only by the letter dated March 27, 2001 of PNP Chief General Mendoza to
then DOJ Secretary Hernando B. Perez. I do not think that the said letter could qualify as a
complaint under Section 3, Rule 112 of the 2000 Revised Rules of Criminal Procedure, 31 the basis
for a preliminary investigation. The procedure adopted is a departure from the usual mode. Again,
in Tatad vs. Sandiganbayan,32 we held:

"A painstaking review of the facts cannot but leave the impression that political motivations
played a vital role in activating and propelling the prosecutorial process in this case. Firstly,
the complaint came to life, as it were, only after Tatad had a falling out with President
Marcos. Secondly, departing from established procedures prescribed by law for preliminary
investigation, which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan referred the complaint
to the Presidential Security Command for fact-finding investigation and report."

Indeed, the circumstances surrounding the filing of the new Informations against respondent are
indicative of persecution and not prosecution.
One thing for which this Court must guard itself against is to be used as an instrument of political
manipulation. As the last bulwark of the defenseless and the accused, our duty is to uphold the law
and no other. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of
the State to prosecute, and when weighed against each other, the scales of justice tilt towards the
former.33

II. Section 8, Rule 117 applies to respondent’s cases upon compliance with its requirements.

Going back to Section 8, Rule 117, the remand of this case to the trial court for the determination of
whether or not the requirements of this provision have been complied with is imperative.

I am not convinced that the dismissal of Criminal Cases Nos. Q-99-81679 to 89 was without the
consent of respondent and that the offended parties were not notified. It appears from the
Resolution34 dated March 29, 1999 of the trial court that respondent’s prayer was for that court to "(1)
make a judicial determination of the existence of probable cause for the issuance of warrants of
arrest; (2) hold in abeyance the issuance of warrants in the meantime; and (3) dismiss the cases
should the court find probable cause." Clearly, this third plea is a manifestation that the dismissal of
the cases was with respondent’s consent. While it is true that what he filed is a mere motion for the
judicial determination of probable cause and for examination of prosecution witnesses, the same
was anchored on the case of Allado vs. Diokno.35 There, we ruled that "[I]f upon the filing of the
information in court, the trial judge, after reviewing the information and the document attached
thereto, finds that no probable cause exists, he must either call for the complainant and the
witnesses themselves or simply dismiss the case. There is no reason to hold the accused for trial
and further expose him to an open and public accusation of the crime when no probable cause
exists." With this as respondent’s premise, I believe it is safe to conclude that the dismissal was with
his express consent.

At any rate, considering the view that there is doubt on whether respondent gave his express
consent to the dismissal of the cases, as expressed in our challenged Resolution, this incident
should be determined by the trial court. With respect to the requirement of notice to the offended
parties, again the same should be addressed to the trial court which can hear the parties thereon.
We must maintain a hands-off stance on these matters for a different approach might lead us astray
into the field of factual conflict where our legal pronouncements would not rest on solid grounds.
Time and again we have ruled that this Court is not a trier of facts. 36

The petitioners maintain that Section 8, Rule 117 cannot be applied retroactively for to do so would
work injustice to the People. Settled in our jurisprudence is the principle that when a new law will be
advantageous to the accused, the same may be given retroactive effect.37 This is more particularly
so when the law is merely procedural. In several cases, we applied the provisions of the 2000 Rules
of Criminal Procedure retroactively.38We should take the same action on Section 8, Rule 117
considering that it is a reinforcement of a person’s constitutional right to speedy trial and speedy
disposition of cases.

Moreover, it has been held that the constitutional provision barring the passage of retroactive laws
protects only the rights of citizens. Hence, a state may constitutionally pass a retroactive law that
impairs its own rights.39 Only private, and not public, rights may become vested in a constitutional
sense.40 Otherwise stated, there is a distinction between the effect to be given a retroactive statute
when it relates to private rights and when it relates to public rights. Public rights may always be
modified or annulled by subsequent legislation without contravening the Due Process Clause. 41

While I concurred in our challenged Resolution that this case should be remanded to the trial court to
enable it to determine whether the requirements of Section 8, Rule 117 have been complied with,
however, I still believe that we should settle now once and for all the most crucial issue, i.e., whether
or not the provisional dismissal contemplated in the Rule shall become permanent two years after
the issuance of the order and thus constitutes a bar to a subsequent prosecution for the same
offense. To evade it now is to delay the day of reckoning and to put the legal community in a
quandary.

The principle adhered to by petitioners is that the rule "prohibits only a revival of a criminal case after
the lapse of the periods prescribed therein and does not impinge on the right of the State to
prosecute an offender for the same offense under a new Information."42 Thus, there arises the
distinction between "revival" and "filing of a new Information."

Section 8 of Rule 117 is a new provision. To reiterate, it draws its life from the constitutional
guarantees of speedy trial43 and speedy disposition of cases. Its mandate is explicit, i.e., a
provisional dismissal of an offense becomes "permanent" if not revive within the prescribed periods
(or two years in respondent’s cases). To say that this "permanent" dismissal prohibits only the
"revival" of the case but not the "filing" of new Information, is to render the provision ineffectual,
providing only lip service to the accused’s constitutional right it seeks to enforce. Indeed, what
difference will the provision make if after the lapse of two years, the State can still prosecute the
accused for the same offense by merely "filing" a new Information? With the interpretation given, the
dismissal cannot really be considered "permanent." After two years, all the prosecution has to do is
to file a new Information. Thus, whether by "revival" or by "filing a new Information," the effect is the
same, i.e., the prosecution of the accused for the same offense continues. What is overlooked is
that, in the interim, he continues to suffer all the prejudices that come with the failure of the
prosecution to put a real end to his case. We might as well take heed of the warning against
"allowing doctrinaire concepts… to submerge the practical demands of the constitutional right to a
speedy trial."44

What price does the State have to pay for its lethargy or negligence to prosecute? If I am to follow
petitioners’ position, then I can say that the only sanction for the violation of the periods prescribed in
Section 8 is that the State should conduct the corresponding new preliminary investigation before it
can file a new information. It seems to me that the new preliminary investigation is the only
difference between "filing a new information" and "revival." To my mind, conducting a preliminary
investigation is hardly a sanction for the prosecution’s negligence. While a new preliminary
investigation causes intense inconvenience to the prosecution, the accused suffers as well. Indeed,
considering the additional delay the prosecution incurs in bringing the case to a conclusion as a
result of the filing of a new information and the anxiety on the part of the accused by a threat of a
new prosecution, the interpretation accorded to Section 8, Rule 117 has not advanced its real
purpose.

Let it be stressed that Section 8 was introduced not so much for the interest of the State but
precisely for the protection of the accused against protracted prosecution. The measure of protection
consistent with its language is the treatment of the "permanent" dismissal as a bar to another
prosecution for the same offense.

The discharge of an accused for failure of the prosecution to bring him to trial within the prescribed
period is not an entirely new concept. Even prior to the introduction of Section 8, there were already
provisions of similar import in other jurisdictions. Under certain statutes implementing the
constitutional right of an accused to speedy trial, a discharge granted pursuant to the statute is held
to be a bar to subsequent prosecution, whether under the same or new indictment. This view has
been defended on the ground that any other construction would open the way for complete evasion
of the statute and that the constitutional provision can only be given its legitimate effect by holding
that a person once discharged is entitled to immunity from further prosecution for the same offense. 45
In State vs. Crawford,46 the Supreme Court of Appeals of West Virginia entered a judgment forever
discharging the accused from prosecution for the offense on the basis of a rule requiring that "every
person charged with felony, and remanded to a circuit court for trial, shall be forever discharged from
prosecution for the offense, if there be three regular terms of such court, after the indictment is found
against him without a trial." The discharge was decreed notwithstanding the fact that it was within the
third term that the State entered a nolle prosequi and at the same time reindict for the same offense.
The court ratiocinated:

"When a prisoner has stood ready for trial through two full terms and substantially through
the third one, and, no doubt, until the jury has been discharged and the opportunity for trial at
that term annihilated, he has substantially performed all the statutory conditions required to
his right of discharge. Although such a discharge is not the moral equivalent of an acquittal,
and he may be guilty, his constitutional right to have his guilt or innocence determined by a
trial within a reasonable time cannot be frittered away upon purely technical and
unsubstantial ground. Nor is the legislative act designed to enforce such right to be
interpreted otherwise than in accordance with the recognized rules of construction. To permit
the state to enter a nolle prosequi within the third term and reindict for the same offense, and
thus deprive the prisoner of the terms fully elapsed as well as the term about to end, would
make it possible to keep the prisoner in custody or under recognizance for an indefinite
period of time, on charges of a single offense, unless perhaps, he could enforce a trial by the
writ of mandamus. Such a construction as substantially tends to the defeat or undue
limitation of the purpose of a statute is not permissible in any jurisdiction.

"4 That statutes shall be so construed as to effectuate the legislative purpose, not defeat it, is
fundamental and all-pervasive in statutory construction. The remedy given by law for failure
to accord a prompt trial to one charged with felony is right to be discharged, not mandamus
to obtain such trial. x x x."

In People vs. Allen,47 the Supreme Court of Illinois held that a discharge of the accused for failure of
the prosecution to try him within four months after written demand, renders him immune from trial for
the same offense whether under the same or a new indictment. In Newlin vs. People,48 the same
court ruled that where a defendant, indicted and committed for crime, is entitled, under the statute, to
a discharge for delay in not bringing him to trial while being held under the indictment, the fact that a
second indictment is found for the same offense and a nolle prosequi entered as to the first
indictment, does not defeat his right to be discharged. Again, in People vs. Heider49 the same court
held that an accused who has obtained his discharge owing to the failure of the People to bring his
case to trial within the time prescribed by the statute enacted to carry into effect the constitutional
guaranty of the right to a speedy trial, cannot be committed or held for the same offense under a
new indictment.

Clearly, there is a catena of jurisprudence supporting the principle that the first discharge of the
accused under a statute implementing the constitutional right to speedy trial constitutes a bar to a
subsequent prosecution for the same offense. I see no reason why we cannot adopt the same
principle.

To reiterate, Section 8, Rule 117 seeks to implement the constitutional guarantees that a) in all
criminal prosecution, the accused shall enjoy the right to have a speedy trial, 50 and b) that all persons
shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.51 The importance of these rights cannot be overemphasized. They are
necessary and vital because a person should not have to face continued anxiety under a prolonged
threat of criminal prosecution. Postponement of trial for a long time will ordinarily handicap an
accused through the disappearance of necessary witnesses and loss of documentary evidence.
Furthermore, after many months or years, the memory of those witnesses who are available will
likely be impaired by the passage of time. These rights are protections too against the harassment of
being subjected to accusation, with its harmful effect on the accused’s reputation and business
affairs.52 As aptly observed in a case, "unreasonable delay between formal accusation and trial
threatens to produce more than one sort of harm, including ‘oppressive pre-trial incarceration,’
‘anxiety and concern of the accused,’ and the ‘possibility that the accused’s defense will be impaired’
by dimming memories and loss of exculpatory evidence." Of these forms of prejudice, the most
serious is the last because the inability of the accused to prepare his case skews the fairness of the
system.53

The high regard attributed by this Court to the accused’s right to a speedy trial and to a speedy
disposition of his case is evident from the tradition established by our case law that the dismissal of
a criminal case based on the denial of the accused’s right to speedy trial amounts to an acquittal and
constitutes a bar to another prosecution for the same offense. 54 It is on the same light that we should
view Section 8.

A rule with the force of law should be construed in the light of the object to be achieved and the evil
or mischief to be suppressed.55 It should be given such a construction as will advance the object and
secure the benefits intended.56 This Court’s Committee on Revision of the Rules of Court surely saw
the prejudice to the rights of the accused caused by a suspended provisional dismissal of his case.
Apparently, Section 8 was introduced owing to the many instances where police agencies have
refused to issue clearances, for purposes of employment or travel abroad, to persons having
pending cases, on the ground that the dismissal of such cases by the court was merely provisional,
notwithstanding the fact that such provisional dismissal, more often than not, had been done five or
ten years ago.57

In addition to the prejudice on the part of the accused, perceived by the Committee, we cannot
disregard the anxiety that he suffers because of a public accusation.

Petitioners attempt to create a conflict between the law on prescription of crimes and the rule on
provisional dismissal. They argue that substantive law should override or prevail over procedural
law. The conflict is non-existent. The law on prescription of crimes refers to the period during which
criminal charges must be filed.58Section 8 of Rule 117 refers to the period when a provisional
dismissal ceases to be temporary and becomes permanent, thus, no longer subject to be set aside
by the revival of criminal charges. This rule comes into play only after the State has commenced the
prosecution.

The twenty-year prescriptive period for a case punishable by death under Section 90 of the Revised
Penal Code is intended to give law enforcers ample time to apprehend criminals who go into hiding.
It also enables prosecutors to better prepare their cases, look for witnesses, and insure that correct
procedure has been followed. On the other hand, the two-year period under Section 8, Rule 117 is
intended to warn the State that once it filed a case, it must have the readiness and tenacity to bring it
to a conclusion. The purpose of the period is to encourage promptness in prosecuting cases.

Prejudice to the rights of the accused intensifies over time. While it is true that a mere mathematical
reckoning of the time involved is insufficient to determine a violation of an accused’s right to speedy
trial, we cannot disregard the reality that after the lapse of a certain period, the reliability of a trial is
compromised in ways that neither party can prove or, for that matter, identify. It bears stressing that
the mere passage of time impairs memories, causes evidence to be lost, deprives the accused of
witnesses, and interferes with his ability to defend himself. Now, these nuisances may be avoided if
we are to give full effect to Section 8 and consider the "permanent" dismissal contemplated therein
as a bar to a subsequent prosecution of the accused for the same offense. Not only will it be in
consonant with the cardinal principle of justice and fairness, it will also provide force to the rule.

Let it be stated anew that this Court cannot and will not allow itself to be made an instrument of
politics nor be privy to any attempt at the perpetration of injustice. 59

In resumè, I reiterate that petitioners’ undue delay in conducting a new preliminary investigation and
refiling of new Informations against respondent violated his constitutional right to a speedy trial and
speedy disposition of his cases. Respondent correctly invoked the implementing Rule, Section 8,
Rule 117. But as we held in our questioned Resolution, it must first be shown before the trial court
that its requirements have been complied with. And I venture to add that should the trial court find
that these requirements have been complied with, then the provisional dismissal of Criminal Cases
Nos. Q-99-81679 to 89 becomes permanent and thus constitutes a bar to a subsequent prosecution
of respondent for the same crimes.

As a final word, punishment should be imposed on the accused only if he violated the law. However,
his constitutional privileges and immunities must be protected against the State’s arbitrary assertions
of power. Obviously, its filing of new Informations against respondent for the same crimes after the
lapse of two years contravenes no less than the universal principle of justice and fairness, the
bedrock of every Constitution, law and rule.

WHEREFORE, I vote to DENY petitioners’ motion for reconsideration.

Footnotes

1
Rollo, Vol. II, pp. 1203–1228.

2
Id. at 1183–1200.

3
NBI Report, pp. 309 and 311.

4
Rollo, Vol. II, pp. 1237–1267.

5
Regalado, Remedial Law Compendium, Vol. II, 9th Revised Edition, p. 442; People v.
Bellosillo, 9 SCRA 835 (1963).

6
Section 5, Rule 112 of the Revised Rules of Criminal Procedure.

7
People v. Hon. Vergara, 221 SCRA 561 (1993).

8
People v. Hinaut, 105 Phil. 303 (1959).

9
Pendatum v. Aragon, 93 Phil. 798 (1953); Caes v. Intermediate Appellate Court, 179 SCRA
54 (1989).

10
People v. Ylagan, 58 Phil. 851 (1933).
11
Baesa v. Provincial Fiscal of Camarines Sur, 37 SCRA 437 (1971).

12
Rule 117, Section 3(i) of the Revised Rules of Criminal Procedure.

13
Benes v. United States of America, 276 F.2d 99 (1960).

14
Sy v. Court of Appeals, 113 SCRA 335 (1982); Lava v. Gonzales, 11 SCRA 650
(1964); Bandiala v. CFI of Misamis Occidental, 35 SCRA 237 (1970); Luciano v. Mariano, 40
SCRA 187 (1971); Teehankee v. Madayag, 207 SCRA 134 (1992).

15
SECTION 1. Preliminary investigation defined; when required. — Preliminary investigation
is an inquiry or proceeding to determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial.

Except as provided in Section 7 of this Rule, a preliminary investigation is required to be

conducted before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to
the fine. (Section 1, Rule 112, 2000 Rules of Criminal Procedure).

16
Bandiala v. Court, supra.

17
232 SCRA 192 (1994).

18
RTC Records, Vol. 10, p. 232.

19
CA Rollo, p. 355.

20
TSN, CA-G.R. SP No. 65034, July 31, 2001, pp. 13–18 (emphasis ours).

21
CA Rollo, p. 378 (emphasis by respondent).

22
Section 4, Rule 129 of the Revised Rules on Evidence.

23
Vari v. Food Fair Stores, 13 A.L.R.3d 844 (1964).

24
Victims Address (per Medico Legal Report)
Manuel Montero Piñan, Zamboanga del Norte
Rolando Siplon Miputak, Dipolog City
Sherwin Abalora Miputak, Dipolog City
Ray Abalora Miputak, Dipolog City
Joel Amora Osmina St., Dipolog City
Jevy Redillas Piñan, Zamboanga del Norte
Welbor Elcamel Bgy. Barra, Dipolog City
Carlito Alap-ap Piñan, Zamboanga del Norte
Pacifico Montero, Jr. Bo. Tinago, Palumpon, Leyte
Meleubren Sorronda Miputak, Dipolog City
 Alex Neri No address
(Unidentified Male in Medico Legal Report)

25
RTC Records, Vol. IX, p. 9.

26
Rufino Siplon did not affix his signature on the Joint Affidavit of Desistance.

27
Affiants Address (per Affidavit of
Desistance)
Myra Abalora UST Abono Estaca, Dipolog
(Mother of Sherwin Abalora and Ray City
Abalora)
Leonora Amora Bgy. Sentral, Dipolog City
(Mother of Joel Amora)
Nenita Alap-ap 338 Sagin St. cor. Amaga St.,
(Wife of Carlito Alap-ap) Poblacio Santa, Piñan,
Zamboanga del Norte
Imelda Montero Poblacion Norte, Piñan,
(Wife of Manuel Montero) Zamboanga del Norte
Carmelita Elcamel Upper Dicayas, Dipolog City
(Wife of Welbor Elcamel)
Margarita Redillas Bgy. Poblacion South, Piñan,
(Mother of Jevy Redillas) Zamboanga del Norte

28
Rollo, Vol. 2, pp. 1205-1214.

29
Id., at p. 1240.

30
Id., at pp. 1241-1247.

31
Id.

32
Id., at pp. 1250-1251.

33
22 C.J.S. Criminal Law, § 223, p. 574; United States v. Eliopoulos, 45 F. Supp. 777 (1942).

34
People v. Allen, 118 p.2d 927, 47 C.A.2d. 735.

35
Carpenter v. Cox, 182 So. 813 (1939).

ART. 90. Prescription of crime. — Crimes punishable by death, reclusion

36

perpetua or reclusion temporalshall prescribe in twenty years.

Crimes punishable by other afflictive penalties shall prescribe in fifteen years.

Those punishable by a correctional penalty shall prescribe in ten years; with the
exception of thise punishable by arresto mayor, which shall prescribe in five years.
 The crime of libel or other similar offenses shall prescribe in one year.

The offenses of oral defamation and slander by deed shall prescribe in six months.

Light offenses prescribe in two months.

When the penalty fixed by law is compound one, the highest penalty shall be made
the basis of the application of the rules contained in the first, second, and third
paragraph of this article.

37
People v. Allen, 14 NE2d 397; State v. Crawford, 98 SE 615.

38
Republic v. Agoncillo, 40 SCRA 579 (1971).

39
State of Kansas v. Ransom, 39 ALR 4th 892.

22 C.J.S., supra, at 575, citing People v. Di Franco, 184 N.Y.S. 2d, p. 974, 17 Misc. 2d
40

177.

41
People v. Ross, 156 N.E. 303 (1927).

42
G.R. No. 136368, January 16, 2002, p. 13, 373 SCRA 524.

43
395 U.S. 701 (1969)

44
Id.

45
Ursua v. Court of Appeals, 256 SCRA 147 (1996).

46
City and County of Denver v. Holmes, 400 P. 2d 1 (1965).

47
Paat v. Court of Appeals, 266 SCRA 167 (1997).

48
Linkletter v. Victor Walker, 381 U.S. 618 (1965).

49
393 U.S. 630 (1968).

50
Glen Livestock Company v. Colwell, 185 U.S. 54 (1902)

51
United States v. Mann, 201 F. Supp. 208 (1968); Barker v. Wingo, 407 U.S. 514 (1972).

52
United States v. Fay, 313 F.2d 620 (1963).

53
United States v.Mann, supra,

54
Dickey v. State of Florida, 398 U.S. 30 (1970).

55
Ibid
 56
Barker v. Wingo, supra.

57
351 U.S. 12 (1956).

58
291 U.S. 97 (1993).

59
297 SCRA 679 (1998).

BELLOSILLO, J.:

1
Giuseppe Mazzini, "Byron and Goethe."

2
P/C Supts. Jewel F. Canson, herein respondent Panfilo Lacson, and Romeo Acop, P/Sr.
Supt. Francisco Subia, Romulo Sales, Supts. Almario Hilario, Luizo Ticman, Zozorabel
Laureles, P/C Insps. Michael Ray Aquino, Gil Meneses, Cesar Mancao, Jose Erwin
Villacorte, P/Sr. Insps. Rolando Anduyan, Glenn Dumlao, Sotero Ramos, P/Insp. Ricardo
Dandan, SPO4 Vicente Arnado, SPO1 Wilfredo Cuantero and SPO1 Wilfredo Angeles.

3
See Annex "A" of the Petition.

4
Order dated 5 June 2001.

5
Decision penned by Associate Justice Eriberto U. Rosario, Jr., concurred in by Associate
Justices Conrado M. Vasquez, Jr., Hilarion L. Aquino, and Josefina Guevara-Salonga.
Associate Justice Buenaventura J. Guerrero, dissenting.

6
Art. VIII, 5(5) of the 1987 Constitution provides that the Supreme Court shall have the
power to promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, or modify substantive rights
xxxx

7
TSN, 19 February 2002, pp. 292-293; see also, Minutes of the Revision Committee
Meetings, 11 October 1999, 2:30 pm; id., 8 November 1999, 2:00 pm.

8
See also Herrera, Remedial Law, Vol. IV, 2001 Ed., at 660.

9
Reed v. Allen, 286 U.S. 191, 209 (1932).

10
See Respondents Memorandum, at pp. 49-53.

11
195 US 100.

12
One of the earliest declarations by this Court on the matter is enshrined in Republic v.
Agoncillo (L-27257, 31 August 1971, 40 SCRA 579.) where Chief Justice Fernando, then an
Associate Justice of the Court, articulated the doctrine that the institution of a case after
having been dismissed without prejudice cannot be the basis of the claim of twice being put
in jeopardy. Citing the case of Jaca v. Blanco (86 Phil. 452 [1950]) Agoncillo unequivocally
pointed out that "x x x (I)n the absence of any statutory provision to the contrary, we find no
reason why the court may not, in the interest of justice, dismiss a case provisionally, i.e.,
without prejudice to reinstating it before the order becomes final or to the subsequent filing of
a new information for the same offense." Ortigas & Company Limited Partnership v. Velasco
(G.R. No. 109645, 25 July 1994, 234 SCRA 455) made the clarification that a dismissal of a
case, even if made without prejudice, and the lapse of the reglementary period within which
to set aside the dismissal operates to remove the case from the Court's docket; in which
event, the case can no longer be reinstated by mere motion in the original docket action, but
only by the filing of a new complaint. This ruling was reiterated in Banares II v. Balising (G.R.
No. 132624, 13 March 2000, 328 SCRA 36) which declared that since a final order of
dismissal is beyond the power of the court to modify or alter, a party who wishes to reinstate
the case has no other option but to file a new complaint.

The following executed affidavits of desistance: Myrna Abalora, mother of victims Sherwin
13

Abalora and Rey Abalora; Rufino Siplon, father of victim Rolando Siplon; Carmelita Elcamel,
wife of victim Wilbur Elcamel; Leonora Soronda Amora, mother of victim Joel Soronda
Amora; Nenita Alap-ap, wife of victim Carlito Alap-ap; Imelda Montero, wife of victim Manuel
Montero; and Margarita Redillas, mother of victim Hilario Jevy Redillas

14
Namely, Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri.

15
De Leon, Philippine Constitutional Law, Vol. 1, 1999 Ed., at p. 877.

16
Caballero v. Alfonso, G.R. No. L-45647, 21 August 1987, 153 SCRA 153.

17
See Abadia v. Court of Appeals, G.R. No. 105597, 23 September 1994, 236 SCRA 676.

18
Decision, at p. 14

19
G.R. Nos. 72335-39, 21 March 1988, 159 SCRA 70.

20
G.R. No. 130191, 27 April 1998, 289 SCRA 725.

21
G.R. Nos. 120681-83, 1 October 1999, 316 SCRA 65.

22
G.R. No. 126814, 2 March 2000, 327 SCRA 145.

23
G.R. No. 108595, 18 May 1999, 302 SCRA 149.

24
Supra.

25
See also Bañares v. Balising, G.R. No. 132624, 13 March 2000, 328 SCRA 36,
citing Olympia International v. Court of Appeals, No. L-43236, 20 December 1989, 180
SCRA 353, 361, wherein we held "that dismissal without prejudice of a complaint does not
however mean that the dismissal order was any less final. Such order of dismissal is
complete in all details, and though without prejudice, nonetheless finally disposed of the
matter. It was not merely an interlocutory order but a final disposition of the complaint." And
in Ortigas & Company, Ltd. v. Velasco, G.R. No. 109645, 25 July 1995, 234 SCRA 455, 486,
"the dismissal of the case, and the lapse of the reglementary period to reconsider and set
aside the dismissal, effectively operated to remove the case from the Court's docket." These
doctrinal principles may be applied to provisional dismissals in criminal cases.
 26
United States v. Lovasco, 431 U.S. 783, 97 (1977).

27
United States v. Marion, 404 U.S. 307 (1971).

28
Ibid.

29
Toussie v. United States, 397 U.S. 112, 114-115 (1970).

30
Supra. See also Binay v. Sandiganbayan, G.R. Nos. 120681-83, 1 October 1999; Dansal
v. Fernandez, G.R. No. 126814, 2 March 2000, 327 SCRA 145; and, Socrates v.
Sandiganbayan, G.R. Nos. 116259-60, 253 SCRA 773. In all these cases, the Court applied
the four factors in the Balancing Test for purposes of determining whether the accused was
deprived of his right to speedy disposition of cases.

31
Barker v. Wingo, 407 U.S. 514 (1972).

32
Ibid.

33
Ibid.

34
See Note 28.

35
Ibid.

36
Smith v. Hooey, 393 U.S. 374 (1969).

37
Barker v. Wingo, supra.

PUNO, J.:

1
Rule 119 was taken from RA No. 8493 entitled "An Act to Insure a Speedy Trial of All
Criminal Cases Before the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court and Municipal Circuit Trial Court" which became effective on
September 15, 1998.

2
Criminal Procedure, Hornbook Series, p. 27, 1988 edition.

3
Section 5 (5) of The 1973 Constitution provides:

"x x x

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the
admission to the practice of law, and the integration of the Bar, which, however, may
be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights."

4
Commenting on the change, author Nolledo observed:
 "The rule-making power of the Supreme Court has been made exclusive to it. The
power of the Congress to alter the rules promulgated by the Highest Court has been
removed. For the Congress to interfere with the Supreme Court promulgated within
the competence of the Highest Tribunal is unconstitutional and now violative of the
separation of powers. Even the jurisdiction of the Supreme Court cannot be enlarged
without the consent of the latter."

(The New Constitution of the Philippines Annotated 690 [1990])

5
RTC Records, Vol. X, p. 232.

6
Resolution, p. 8.

7
Id. at 9.

8
Paat v. Court of Appeals, 266 SCRA 167 (1997).

9
Tan, Jr. v. Court of Appeals, G.R. No. 136368, January 16, 2002.

10
Billones v. Court of Industrial Relations, 14 SCRA 674, 681 (1965).

11
Greogoria v. CA, 26 SCRA 229 (1968).

VITUG, J.:

1
People vs. Montenegro, 68 Phil 659; People vs. Moran, 44 Phil 405.

2
Wharton on Criminal Pleading and Practice, 9th ed., 1889, sec. 316, p. 215, cited in People
vs. Moran,supra.

3
Section 5, par. 5, 1987 Constitution.

"SEC. 5. The Supreme Court shall have the following powers:

xxx xxx xxx

(5) Promulgate rules concerning the protection and enforcement of constitutional

rights, pleading, practice, and procedure in all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases,
shall be uniform for all courts of the same grade, and shall not diminish, increase, or
modify substantive rights. Rules of procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved by the Supreme Court."

4
Id.

SANDOVAL-GUTIERREZ, J.:

1
21 Am Jur 2d § 1031 citing Ex parte State ex rel. Atty. Gen., 255 Ala. 443, 52 So. 2d 158
(1951); Hicks vs. People, 148 Colo. 26, 364 P. 2d 877 (1961); State vs. Strong, 8 Kan. App.
2d 589, 663 P. 2d 668 (1983);State vs. Stimson, 41 Was. App. 385, 704 P. 2d 1220 (Div. 3
1985).

2
State vs. Kuhnhausen, 201 Or. 478, 272 P. 2d 225 (1954).

3
Barela vs. People, 826 P. 2d 1249 (Colo.1992) State vs. Russel, 108 Idaho 58, 696 P. 2d
909 (1985);State vs. Strong, supra.

4
State vs. Kuhnhausen, supra.

5
State vs. Brockelman, 173 Kan. 469, 249 P. 2d 692 (1952).

6
State vs. Strong, supra.

7
Section 14 (2), Article III.

8
Section 16, Article III.

9
State vs. Kuhnhausen¸ 272 P. 2d 225 (1954).

G.R. No. 104386, March 28, 1996, 255 SCRA 238 (1996), citing People vs. Tampal, 314
10

Phil. 35 (1995).

11
G.R. No. L-45647, August 21, 1987, 153 SCRA 153 (1987).

Guerrero vs. Court of Appeals, G.R. No. 107211, June 28, 1996, 257 SCRA
12

703; Cojuangco, Jr., vs. Sandiganbayan, G.R. No. 134307, December 21, 1998, 300 SCRA
367.

13
Rollo at 93-102.

14
Id. at 62.

15
Id. at 1082.

16
Id. at 626.

17
Id. at 389.

Esmena vs. Pogoy, G.R. No. 54110, February 20, 1981, 102 SCRA 861; People vs. Diaz,
18

94 Phil. 714 (1954).

19
See Lopez vs. Office of the Ombudsman, G.R. No. 140529, September 6, 2001.

20
United States vs. Macdonald, 456 U.S. 1 (1982), see Dissenting Opinion.

21
G.R. No. 108595, May 18, 1999, 307 SCRA 149.

22
21A Am Jur 2d § 1036.
23
U.S. vs. Villete, 688 F. Supp. 777 (D. Mer 1988); Hutchison vs. Marshall, 573 f. Supp. 496,
9 Media l. Rep. BNA) 2443 (S.D. Ohio 1983), judgment aff’d, 744 F. 2d 44 (6th Cir. 1984);
Dykes vs. State, 452 So. 2d 1377 (Ala. Crim. App. 1984); State vs. Johnson, 190 Conn. 541,
461 A. 2d 981 (1983) (16-month delay triggers judicial scrutiny); State vs. Johnson, 564 A.
2d 364 (Del. Super.Ct. 1989); State vs. Russel, supra(23-month delay triggers judicial
scrutiny); State vs. Strong, supra; Skaggs vs. State, 676 So. 2d 897 (Miss. 1996) (delay of
eight months or more is presumptively prejudicial); State vs. Powers, 612 S.W. 2d 8 (Mo. Ct.
App. S.D. 1980); State vs. Sanderson, 214 Mont. 437, 692 P. 2d 479 (1985) (390 day delay
triggers speedy trial inquiry).

24
Graves vs. U.S., 490 A 2d 1086 (D.C. 1984).

25
Rollo at 504.

26
Id. at 96.

27
G.R. No. 145851, November 22, 2001.

In U.S. vs. Dreyer, it was held that the factor of prejudice is not limited impairment of
28

defense, it includes mental suffering.

29
Rollo at 159.

30
Supra.

31
"(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two copies for the official file. The Affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or in their absence or
unavailability, before a notary public; each of whom must certify that he is personally
examined the affiants and that he is satisfied that they voluntarily executed and understood
their affidavits."

32
Supra.

33
Allado vs. Diokno, G.R. No.113630, May 5, 1994, 232 SCRA 192.

34
Rollo at 93-103.

35
Supra.

La Suerte Cigar and Cigarette Factory vs. Director of the Bureau of Labor Relations, 208
36

Phil. 597 (1983); National Food Authority vs. Court of Appeals, G.R. No. 96453, August 4,
1999, 311 SCRA 700.

37
Article 22, Revised Penal Code.

38
People vs. Arrojado, G.R. No. 130492, January 31, 2001, 350 SCRA 679.
 16B Am Jur 2d §697 citing Rousselle vs. Plaquemines Parish School Bd., 633 So. 2d
39

1235, 90 Ed. Law Rep. 519 (La. 1994) reh’g denied, (Apr. 21, 1994); Town of Nottingham vs.
Harvey, 120 N.H. 889, 424 A 2d 1125 (1980).

40
Bradford vs. Suffolk Country, 257 A.D. 777 15 N.Y. S. 2d 353 (2d Dep’t 1939), judgment
affirmed as modified, 283 N.Y. 503, 28 N.E. 2d 932 (1940).

41
Holen vs. Minneapolis-St. Apul Metropolitan Airports Commission, 250 Minn.

42
Decision at 33.

43
While there are jurisprudence to the effect that once charges are dismissed, the speedy
trial guarantee is no longer applicable, (State vs. Marion, 404 U.S. 307; Dillingham vs. United
States, 423 U.S. 64; Barker vs. Wingo, 407 U.S. 514), however, I am convinced that the
peculiar facts of the present case render said jurisprudence inappropriate. On its face, the
Constitutional provision seems to apply to one who has been publicly accused, has obtained
dismissal of those charges, and has then been charged once again with the same crime by
the same sovereign. Nothing therein suggests that an accused must be continuously
charged in order to obtain the benefits of the speedy trial right. A natural reading of the
language is that the Speedy Trial Clause continues to protect one who has been accused of
a crime until the government has completed its attempts to try him for that crime. In Klopfer
vs. North Carolina, 386 U.S. 213, the prosecutor entered a "nolle prosequi with leave" after
the first trial ended in a mistrial. Under that procedure, the defendant was discharged from
custody and subjected to no obligation to report to the court. It was held that the indefinite
postponement of the prosecution, over defendant’s objection "clearly" denied the defendant
the right to a speedy trial. The Court reasoned that the defendant "may be denied an
opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over
his objection, throughout the unlimited period in which the solicitor may restore the case to
the calendar. During that period, there is no means by which he can obtain a dismissal or
have the case restored to the calendar trial. The prosecutor was required to take affirmative
steps to reinstate the prosecution; no charges were "actively" pending against Klopfer,
nevertheless, the court held that the speedy trial right applied.

44
Smith vs. Hooey, 393 U.S. 374 (1969).

45
21 A Am Jur 2d §1053.

46
98 S.E. 615.

47
14 N.E. 2d 397.

48
221 Ill. 166, 77 N.E. 529.

49
225 Ill. 347, 80 N.E. 291.

50
Section 14 (2), Article III, 1987 Constitution.

51
Section 16, Article III, 1987 Constitution.

52
Antieau, Modern Constitutional Law, Vol. 1, 1969 at 336.
 53
Doggett vs. United States, 505 U.S. 647 (1992).

54
People vs. Abano, 97 Phil. 28 (1955); People vs. Tacneng, 105 Phil. 1298 (1959); People
vs. Robles, 105 Phil. 1016 (1959); Salcedo vs. Mendoza, G.R. No. L-49375, February 28,
1979, 88 SCRA 811.

Agpalo, Statutory Construction at 100 to 101, citing LVN Pictures vs. Philippine Mucisian’s
55

Guild, 110 Phil. 225 (1961); People vs. Purisima, G.R. No. L-42050, November 20, 1978, 86
SCRA 542;Commissioner of Internal Revenue vs. Filipinas Compania de Seguros, 107 Phil.
1055 (1960).

56
Rivera vs. Campbell, 34 Phil. 348 (1916).

57
Herrera, Remedial Law, Vol. IV, 2001 Ed. at 660.

58
Under Article 90, the Revised Penal Code, crimes punishable by death, reclusion perpetua,
or reclusion temporal shall prescribe in twenty (20) years.

59
Constantino vs. Desierto, G.R. No. 127457, April 13, 1998, 288 SCRA 654.

People v. Lacson 413 SCRA 20 (2003)

EN BANC

G.R. No. 149453 October 7, 2003

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE

PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY
PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO
ARELLANO, petitioners,
vs.
PANFILO M. LACSON, respondent.

RESOLUTION

CALLEJO, SR., J.:

Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion; 1 (b) Motion
for Reconsideration;2 (c) Supplement to Motion for Reconsideration;3 (d) Motion To Set for Oral
Arguments.4

The Omnibus Motion

The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which
granted the petitioners’ motion for reconsideration. The respondent thereafter prays to allow
Associate Justices Renato C. Corona, Ma. Alicia Austria-Martinez, Conchita C. Morales, Romeo J.
Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that
such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner,
participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for
Reconsideration. The respondent points out that the aforenamed members of the Court were
appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and
after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No.
99-8-09-SC5specifically provides that it applies only to the divisions of the Court, it should likewise
apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution
dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for
reconsideration and its supplement. As such, according to the respondent, the instant case should
be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court.

The Court resolves to deny the respondent’s motion for lack of merit.

The records show that as early as May 24, 2002, the respondent filed an urgent motion for the
recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they
were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the
integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit
themselves and decided to participate in the deliberation on the petition.6 On March 18, 2003, the
respondent filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on
account of his voluntary inhibition when the case was pending before the Court of Appeals.

On March 25, 2003, this Court issued a resolution denying the respondent’s Motion dated March 18,
2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution
of the Court in which he prayed, inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-
8-09-SC and that the case be re-raffled to another member of the Court who had actually
participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent
likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the
reason that they were appointed to the Court after the oral arguments on February 19, 2002 and
after the case had already been submitted for decision.

On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the
respondent.7 The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned to the
divisions of the Court:

The respondent’s reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by the
respondent, the said circular is applicable only to motions for reconsideration in cases assigned to
the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had
always been and still is, if the ponente is no longer with the Court, his replacement will act upon the
motion for reconsideration of a party and participate in the deliberations thereof. This is the reason
why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1,
2003 Resolution of the Court.8

The Court also ruled that there was no need for its newest members to inhibit themselves from
participating in the deliberation of the respondent’s Motion for Reconsideration:

Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not
yet members of the Court during the February 18, 20029 oral arguments before the Court,
nonetheless they were not disqualified to participate in the deliberations on the petitioner’s motion for
reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for
reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on
the motion for reconsideration of the respondent. When the Court deliberated on petitioners’ motion
for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna
were already members of the Court.

It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing
and oral arguments of the parties are parts of the records of this case. Said transcripts are available
to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao,
Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the
said transcripts and the records of this case they are informed of what transpired during the hearing
and oral arguments of the parties.10

It is thus clear that the grounds cited by the respondent in his omnibus motion had already been
passed upon and resolved by this Court. The respondent did not make any new substantial
arguments in his motion to warrant a reconsideration of the aforesaid resolutions.

Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna
only after they had already concurred in the Court’s Resolution dated April 1, 2003. Case law has it
that a motion for disqualification must be denied when filed after a member of the Court has already
given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to
speculate upon the action of the Court, only to raise an objection of this sort after a decision has
been rendered.11

The Motion to Set the Case for Oral Arguments

The Court denies the motion of the respondent. The parties have already extensively discussed the
issues involved in the case. The respondent’s motion for reconsideration consists of no less than a
hundred pages, excluding the supplement to his motion for reconsideration and his reply to the
petitioners’ comment on his motion. There is no longer a need to set the instant case for oral
arguments.

The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised Rules of
Criminal Procedure – Whether Prospective or Retroactive

The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter
reinstate its Resolution of May 28, 2002.

He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in
applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should
be applied prospectively and retroactively without reservations, only and solely on the basis of its
being favorable to the accused. He asserts that case law on the retroactive application of penal laws
should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists
that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional
right of the accused to a speedy disposition of his case. It is primarily a check on the State to
prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused
anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no
other conclusion: the rule should have retroactive application, absent any provision therein that it
should be applied prospectively. Accordingly, prospective application thereof would in effect give the
petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus
violating the respondent’s right to due process and equal protection of the law.

The respondent asserts that Section 8 was meant to reach back in time to provide relief to the
accused. In this case, the State had been given more than sufficient opportunity to prosecute the
respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir,
Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the
petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112
beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed
to derail his bid for the Senate.

In their comment on the respondent’s motions, the petitioners assert that the prospective application
of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in
part that the rules of procedure which the Court may promulgate shall not diminish, increase or
modify substantial rights. While Section 8 secures the rights of the accused, it does not and should
not preclude the equally important right of the State to public justice. If such right to public justice is
taken away, then Section 8 can no longer be said to be a procedural rule. According to the
petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not
be given a retroactive application. They contend that the right of the accused to a speedy trial or
disposition of the criminal cases applies only to outstanding and pending cases and not to cases
already dismissed. The petitioners assert that the "refiling of the cases" under Section 8 should be
taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of
conducting a preliminary investigation, and not the actual filing of the criminal complaint or
information in court for trial. Furthermore, according to the petitioners, the offended parties must be
given notices of the motion for provisional dismissal of the cases under Section 8 since the provision
so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into
consideration, the two-year period had not yet even commenced to run.

In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is
proscribed from refiling a criminal case if it can be shown that the delay resulted in a violation of the
right of the accused to due process. In this case, there was an inordinate delay in the revival of the
cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same
witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar
but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the
petitioners’ contention, the respondent posits that the revival of the cases contemplated in Section 8
refers to the filing of the Informations or complaints in court for trial. The operational act then is the
refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the
two-year bar.

The Court finds the respondent’s contentions to be without merit.

First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5
of the Constitution which reads:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and
legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and
shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the
accused. It must be noted that the new rule was approved by the Court not only to reinforce the
constitutional right of the accused to a speedy disposition of the case. The time-bar under the new
rule was fixed by the Court to excise the malaise that plagued the administration of the criminal
justice system for the benefit of the State and the accused; not for the accused only. The Court
emphasized in its assailed resolution that:
In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the
accused and with a priori notice to the offended party. The time-bar may appear, on first impression,
unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in
fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly
and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It
took into account the substantial rights of both the State and of the accused to due process. The
Court believed that the time limit is a reasonable period for the State to revive provisionally
dismissed cases with the consent of the accused and notice to the offended parties. The time-bar
fixed by the Court must be respected unless it is shown that the period is manifestly short or
insufficient that the rule becomes a denial of justice.12

In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may
make the rule prospective where the exigencies of the situation make the rule prospective. The
retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the
Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own
distinct functions, its own background or precedent, and its own impact on the administration of
justice, and the way in which these factors combine must inevitably vary with the dictate involved. 13

Matters of procedure are not necessarily retrospective in operation as a statute. 14 To paraphrase the
United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of
adherence may make a choice for itself between the principle of forward operation and that of
relating forward.15

The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the
Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to
determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144
of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion
their application would not be feasible or would work injustice, in which event, the former procedure
shall apply.16

The absence of a provision in Section 8 giving it prospective application only does not proscribe the
prospective application thereof; nor does it imply that the Court intended the new rule to be given
retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should
be construed as is conducive to fairness and justice, and in harmony with the general spirit and
policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose. 17 A
statute derives its vitality from the purpose for which it is approved. To construe it in a manner that
disregards or defeats such purpose is to nullify or destroy the law.18 InCometa v. Court of
Appeals,19 this Court ruled that "the spirit rather than the letter of the statute determines its
construction; hence, a statute must be read according to its spirit or intent." 20 While we may not read
into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for
its enactment. In doing so, we defer not to the "letter that killeth" but to the "spirit that vivifieth, to give
effect to the lawmaker’s will."21

In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively
and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose
for which it was intended, namely, to give the State a period of two years from notice of the
provisional dismissal of criminal cases with the express consent of the accused. It would be a denial
of the State’s right to due process and a travesty of justice for the Court to apply the new rule
retroactively in the present case as the respondent insists, considering that the criminal cases were
provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on
December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and
oppressive consequences to the State and to the victims of crimes and their heirs.

Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express
consent of the accused in 1997. The prosecution had the right to revive the case within the
prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1,
2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal
case before then.

If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State
would be barred from reviving the case for failure to comply with the said time-bar, which was yet to
be approved by the Court three years after the provisional dismissal of the criminal case. In contrast,
if the same case was dismissed provisionally in December 2000, the State had the right to revive the
same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and
anticipate that three years after 1997, the Court would approve and amend the RRCP. The State
would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must
be stressed that the institution and prosecution of criminal cases are governed byexisting rules and
not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal
existence before it was approved by the Court. The past cannot be erased by a capricious
retroactive application of the new rule.

In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases
provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus:

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year
period commenced to run on March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the
new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-
99-81679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the
Court applied the new time-bar retroactively, the State would have only one year and three months
or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-
year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the
State would have two years from December 1, 2000 or until December 1, 2002 within which to revive
the cases. This is in consonance with the intendment of the new rule in fixing the time-bar and thus
prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful
results in the administration of justice.

The period from April 1, 1999 to November 30, 199922 should be excluded in the computation of the
two-year period because the rule prescribing it was not yet in effect at the time and the State could
not be expected to comply with the time-bar. It cannot even be argued that the State waived its right
to revive the criminal cases against respondent or that it was negligent for not reviving them within
the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix
1a\^/phi1.net

Frankfurter, in Griffin v. People, 351 US 12 (1956):

We should not indulge in the fiction that the law now announced has always been the law and,
therefore, that those who did not avail themselves of it waived their rights …

The two-year period fixed in the new rule is for the benefit of both the State and the accused. It
should not be emasculated and reduced by an inordinate retroactive application of the time-bar
therein provided merely to benefit the accused. For to do so would cause an "injustice of hardship"
to the State and adversely affect the administration of justice in general and of criminal laws in
particular.23

Further quoting Justice Felix Frankfurter’s opinion in Griffin v. People, 24 he said, "it is much more
conducive to law’s self-respect to recognize candidly the considerations that give prospective
content to a new pronouncement of law. That this is consonant with the spirit of our law and justified
by those considerations of reason which should dominate the law has been luminously expounded
by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court."

Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir,
Jr. could not have been expected to comply with the notice requirement under the new rule when it
yet had to exist:

99. Respondent submits that the records are still in the same state of inadequacy and incompletion.
This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999,
when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his
actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it
yet had to exist?25

Statutes regulating the procedure of the courts will be construed as applicable to actions pending
and undetermined at the time of their passage. In that sense and to that extent, procedural laws are
retroactive.26Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long been dismissed by Judge
Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the
Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos.
Q-99-81679 and Q-99-81689 had long since been terminated. The two-year bar in the new rule
should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to
Q-99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court
applied Section 8 of Rule 11027 of the RRCP retroactively, it did so only to cases still pending with
this Court and not to cases already terminated with finality.

The records show that after the requisite preliminary investigation conducted by the petitioners in
accordance with existing rules, eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112
were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent
cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in
the Constitution had been violated.28

The respondent’s plaint that he was being singled out by the prospective application of the new rule
simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for
the presidency of the Republic for the 2004 elections has no factual basis whatsoever. 29 The bare
and irrefutable fact is that it was in this case where the issue of the retroactive/prospective
application of the new rule was first raised before the Court. The ruling of the Court in its April 1,
2003 Resolution and its ruling today would be the same, regardless of who the party or parties
involved are, whether a senator of the Republic or an ordinary citizen.

The respondent’s contention that the prospective application of the new rule would deny him due
process and would violate the equal protection of laws is barren of merit. It proceeds from an
erroneous assumption that the new rule was approved by the Court solely for his benefit, in
derogation of the right of the State to due process. The new rule was approved by the Court to
enhance the right of due process of both the State and the accused. The State is entitled to due
process in criminal cases as much as the accused.
Due process has never been and perhaps can never be precisely defined. It is not a technical
1a\^/phi1.net

conception with a fixed content unrelated to time, place and circumstances. The phrase expresses
the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its
importance is lofty.30 In determining what fundamental fairness consists of in a particular situation,
relevant precedents must be considered and the interests that are at stake; private interests, as well
as the interests of the government must be assessed. In this case, in holding that the new rule has
prospective and not retroactive application, the Court took into consideration not only the interests of
the respondent but all other accused, whatever their station in life may be. The interest of the State
in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered.

The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of the
Revised Rules of Criminal Procedure

The respondent argues that the issue involved in the Court of Appeals is entirely different from the
issue involved in the present recourse; hence, any admissions he made in the court below are not
judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he
was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102
to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the
issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was
barred by Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the
appellate court are different from those in this Court.

The respondent posits that this Court erred in giving considerable weight to the admissions he made
in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only
be used against a party if such admissions are (a) made in the course of the proceedings in the
same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26,
Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he
filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679
to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at
the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause,
Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers
that his motion included the general prayer "for such other reliefs as may be equitable in the
premises." The respondent also points out that the public prosecutor agreed to the averments in his
motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.’s order
dismissing the cases.

The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or
verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial
court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to
enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice
requirements of Section 8. Echoing the May 28, 2002 ruling of this Court, the respondent contends
that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir,
Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of
probable cause.

The respondent avers that the requirement for notices to the offended parties under Section 8 is a
formal and not an essential requisite. In criminal cases, the offended party is the State and the role
of the private complainant is limited to the determination of the civil liability of the accused. According
to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant
to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the
offense is under the control and direction of the public prosecutor.
The contentions of the respondent have no merit.

First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil
Case No. 01-100933,31 the respondent32 sought injunctive relief from the RTC of Manila on his claim
that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the
petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP. 33 When
the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA,
again invoking his right against double jeopardy, praying that:

13. Inasmuch as the case subject of the "preliminary investigation" was dismissed for the reasons
mentioned, there currently exists no complaint upon which a valid investigation can be had in light of
the clear provisions of Rule 110 which requires the existence of a "sworn written statement charging
a person with an offense" as basis for the commencement of a preliminary investigation under Rule
112.1awphi1.nét

For petitioner, the investigation covers exactly the same offenses over which he had been duly
arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to
57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in
jeopardy of being twice punished therefor (Article III, §21, Constitution).34

The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679
to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer
be charged and prosecuted anew for the same offense without violating his right against double
jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first
time Section 8 of Rule 117 of the RRCP:

(e) the new criminal cases for Murder filed by respondents against petitioner and the other accused
on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before
respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same
accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal
Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years
after such dismissal in accordance with the clear provisions of Section 8, Rule 117.35

Indeed, the CA granted the respondent’s petition based on Section 8, Rule 117 of the RRCP. In this
case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in
this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew
and the provisions of the Constitution on double jeopardy:

JUSTICE PANGANIBAN:

You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the
killing of the 11 in 1995?

ATTY. FORTUN:

That is my submission, Your Honor.

JUSTICE PANGANIBAN:

Let us see your reason for it?

ATTY. FORTUN:36

First, are you saying that double jeopardy applies or not?

JUSTICE PANGANIBAN:37

Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my
submission.

ATTY. FORTUN:38

No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the
doctrine of double jeopardy?

ATTY. FORTUN:

Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted)

JUSTICE PANGANIBAN:

That is right.

ATTY. FORTUN:

They are two different claims.

JUSTICE PANGANIBAN:

That is what I am trying to rule out so that we do not have to discuss it.

ATTY. FORTUN:

Very well, Your Honor.

JUSTICE PANGANIBAN:

You are not invoking double jeopardy?

ATTY. FORTUN:

As I mentioned we are saying that the effects of a permanent dismissal vest the effects
(interrupted)

JUSTICE PANGANIBAN:

No, I am not talking of the effects, I am asking about the application, you are not asking the
Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson?

ATTY. FORTUN:
Because the element of double jeopardy cannot apply 8, 117.

JUSTICE PANGANIBAN:

So, the answer is yes?

ATTY. FORTUN:

No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of
double jeopardy upon the accused who invokes it.

JUSTICE PANGANIBAN:

What you are saying is the effects, I am not asking about the effects, I will ask that later.

ATTY. FORTUN:

They are two different (interrupted)

JUSTICE PANGANIBAN:

Later, I am asking about doctrines. Since you are not invoking the doctrine of double
jeopardy you are resting your case win or lose, sink or sail on the application of 8,117?

ATTY. FORTUN:

On the constitutional right of the accused under Section 16 of Article 3 which is speedy
disposition of cases which implemented 8,817, that is our arguments in this bar.

JUSTICE PANGANIBAN:

Are you not resting on 8,117?

ATTY. FORTUN:

That and the constitutional provision, Your Honor.

JUSTICE PANGANIBAN:

So, you are resting on 8,117?

ATTY. FORTUN:

Not exclusive, Your Honor.

JUSTICE PANGANIBAN:

And the Constitution?

ATTY. FORTUN:

The Constitution which gave life to 8,117.

JUSTICE PANGANIBAN:

To speedy disposition?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE PANGANIBAN:

Can a Court, let us see your theory then – your theory rest on two provisions: first, the Rules
of Court 8,117 and Second, the Constitution on speedy disposition?

ATTY. FORTUN:

Yes, Your Honor.39

Second. The respondent’s answers to the questions of Madame Justice Josefina Salonga
during the hearing in the CA where he admitted, through counsel, that he gave no express
conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of
Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus:

JUSTICE SALONGA:

Do we get it from you that it is your stand that this is applicable to the case at bar?

ATTY. FORTUN:

It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr.
Lacson is covered by the rule on double jeopardy as well, because he had already been
arraigned before the Sandiganbayan prior to the case being remanded to the RTC.

JUSTICE SALONGA:

You are referring to those cases which were dismissed by the RTC of Quezon City.

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE SALONGA:

And it is your stand that the dismissal made by the Court was provisional in nature?

ATTY. FORTUN:
It was in that the accused did not ask for it. What they wanted at the onset was simply a
judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.]
upon the presentation by the parties of their witnesses, particularly those who had withdrawn
their affidavits, made one further conclusion that not only was this case lacking in probable
cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding
to trial.

JUSTICE SALONGA:

And it is expressly provided under Section 8 that a case shall not be provisionally dismissed
except [if] it is with the express conformity of the accused.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

And with notice to the offended party.

ATTY. FORTUN:

That is correct, Your Honor.

JUSTICE SALONGA:

Was there an express conformity on the part of the accused?

ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any order, or any statement which
would normally be required by the Court on pre-trial or on other matters, including other
provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me
that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the
accused to come forward, and the judge himself or herself explains the implications of a
provisional dismissal.40

The respondent, through counsel, even admitted that despite his plea for equitable relief in
his motion for a judicial determination of probable cause in the RTC, he did not agree to a
provisional dismissal of the cases. The respondent insisted that the only relief he prayed for
before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of
probable cause. He asserted that the judge did not even require him to agree to a provisional
dismissal of the cases:

JUSTICE ROSARIO:

You were present during the proceedings?

ATTY. FORTUN:
Yes, Your Honor.

JUSTICE ROSARIO:

You represented the petitioner in this case?

ATTY. FORTUN:

That is correct, Your Honor. And there was nothing of that sort which the good Judge
Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of
provisional dismissal or the matter of Mr. Lacson agreeing to the provisional
dismissal of the case.

JUSTICE GUERRERO:

Now, you filed a motion, the other accused then filed a motion for a judicial determination of
probable cause?

ATTY. FORTUN:

Yes, Your Honor.

JUSTICE GUERRERO:

Did you make any alternative prayer in your motion that if there is no probable cause what
should the Court do?

ATTY. FORTUN:

That the arrest warrants only be withheld. That was the only prayer that we asked. In
fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it
said: "Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause
pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an
order be issued directing the prosecution to present private complainants and their witnesses
at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused
be withheld, or, if issued, recalled in the meantime until resolution of this incident."

JUSTICE GUERRERO:

There is no general prayer for any further relief?

ATTY. FORTUN:

There is but it simply says other equitable reliefs are prayed for.

JUSTICE GUERRERO:

Don’t you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your
prayer for just and equitable relief to dismiss the case because what would be the net effect
of a situation where there is no warrant of arrest being issued without dismissing the case?
 ATTY. FORTUN:

Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is
we did not agree to the provisional dismissal, neither were we asked to sign any
assent to the provisional dismissal.

JUSTICE GUERRERO:

If you did not agree to the provisional dismissal, did you not file any motion for
reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed?

ATTY. FORTUN:

I did not, Your Honor, because I knew fully well at that time that my client had already
been arraigned, and the arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not
take any further step in addition to rocking the boat or clarifying the matter further
because it probably could prejudice the interest of my client.

JUSTICE GUERRERO:

Continue.41

In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent
declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without
jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was
assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of
probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for
the dismissal of the Informations, contrary to respondent OSG’s claim. 42

Section 4, Rule 129 of the Revised Rules of Court reads:

Sec. 4. Judicial admissions. – An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.

A judicial admission is a formal statement made either by a party or his or her attorney, in the course
of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary
concession of fact by a party or a party’s attorney during such judicial proceedings, including
admissions in pleadings made by a party.43It may occur at any point during the litigation process. An
admission in open court is a judicial admission.44 A judicial admission binds the client even if made
by his counsel.45 As declared by this Court:

... [I]n fact, "judicial admissions are frequently those of counsel or of attorney of record, who is, for
the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of
dispensing with proof of some fact, ... they bind the client, whether made during, or even after the
trial."46
When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-
81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not
give his express consent to the provisional dismissal of the said cases, he in fact admitted that one
of the essential requisites of Section 8, Rule 117 was absent.

The respondent’s contention that his admissions made in his pleadings and during the hearing in the
CA cannot be used in the present case as they were made in the course of a different proceeding
does not hold water. It should be borne in mind that the proceedings before the Court was by way of
an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as
such, the present recourse is but a mere continuation of the proceedings in the appellate court. This
is not a new trial, but a review of proceedings which commenced from the trial court, which later
passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and
such admissions so hold him in the proceedings before this Court. As categorically stated in
Habecker v. Clark Equipment Company:47

... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client
during a trial, are binding "for the purpose of the case ... including appeals."

While it may be true that the trial court may provisionally dismiss a criminal case if it finds no
probable cause, absent the express consent of the accused to such provisional dismissal, the latter
cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply
because the public prosecutor did not object to a motion of the accused for a judicial determination
of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even
a cursory reading of the respondent’s motion for a judicial determination of probable cause will show
that it contained no allegation that there was no probable cause for the issuance of a warrant for the
respondent’s arrest as a prayer for the dismissal of the cases. The respondent was only asking the
court to determine whether or not there was probable cause for the issuance of a warrant for his
arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it
that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the
court to grant such relief.48 A court cannot set itself in motion, nor has it power to decide questions
except as presented by the parties in their pleadings. Anything that is resolved or decided beyond
them is coram non judice and void.49

Third. There is no need for the Court to remand the instant case to the trial court to enable the
respondent to adduce post facto evidence that the requisite notices under Section 8 had been
complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from
the Sandiganbayan and the RTC50 and found no proof that the requisite notices were even served on
all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28,
2002 Resolution, "Judge Agnir, Jr. could not have complied with the mandate under Section 8
because said rule had yet to exist."51

One final matter. The records show that Criminal Cases Nos. 01-101102 to 01-101112 were
assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same
branch which dismissed Criminal Cases Nos. 99-81679 to 99-81689.52 In the April 1, 2003
Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed
to try and decide Criminal Cases Nos. 01-101102 to 01-101112 with reasonable dispatch. The Court
notes, however, that in Administrative Order No. 104-96, it designated six branches of the RTC of
Quezon City53 as special courts, exclusively to try and decide heinous crimes under Rep. Act No.
7659. Since the accused in the said cases are charged with murder, which under Rep. Act No. 7659,
is classified as a heinous crime, the above cases should be consolidated and re-raffled by the
Executive Judge of the RTC of Quezon City to a branch thereof designated as a special court,
exclusively to try and decide heinous crimes.
IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacson’s Omnibus Motion and Motion
to Set for Oral Arguments are DENIED. The respondent’s Motion for Reconsideration and its
Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial Court of
Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to 01-101112
and to RE-RAFFLE the same with dispatch to one of the branches of the Regional Trial Court of
Quezon City designated as a special court, exclusively to try and decide heinous crimes.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez, Carpio-Morales, and

Azcuna, JJ., concur.

Puno, J., maintains his dissent.

Vitug, J., maintains his dissent and reiterate his opinion on the Court’s resolution of 28 May 2002.

Ynares-Santiago, J., see separate dissenting opinion.

Sandoval-Gutierrez, J., see dissenting opinion.

Carpio, J., no part.

Corona, J., on leave.

Tinga, J., no part.

Footnotes

1
Rollo, Vol. III, pp. 1563-1570.

2
Id. at 1391-1491.

3
Id. at 1513-1529.

4
Id. at 1493.

5
Rules on Who Shall Resolve Motions for Reconsideration in Cases Assigned to the
Divisions of the Court, effective April 1, 2000.

6
Rollo, Vol. II, p. 1179.

7
Rollo, Vol. III, p. 1496.

8
Id. at 1501.

9
February 18, 2002 should read February 19, 2002.
10
Id. at 1500-1501.

11
Limpin, Jr. v. Intermediate Appellate Court, 161 SCRA 83 (1988).

12
Rollo, Vol. II, p. 1342.

13
Stovall v. Denno, 18 L.Ed.2d. 1199 (1967).

14
United States Fidelity & Guarantee Company v. United States, 52 L.Ed. 804 (1908).

15
Great Northern Railway Company v. Sunburst Oil & Refining Company, 77 L.Ed. 360
(1932).

16
Rule 144, Rules of Court, as amended:

These rules shall take effect on January 1, 1964. They shall govern all cases brought
after they take effect, and also all further proceedings in cases then pending, except
to the extent that in the opinion of the court their application would not be feasible or
would work injustice, in which event the former procedure shall apply.

17
Age-Herald Publishing Co. v. Huddleston, 92 So. 193 (1921).

18
Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001).

19
351 SCRA 294 (2001).

20
Id. at 304.

21
Id.

22
November 30, 1999 should read November 30, 2000.

23
Resolution dated April 1, 2003, pp. 25-26; Rollo, Vol. II, pp. 1343-1344.

24
Supra.

25
Rollo, Vol. III, p. 1448.

26
Tan v. Court of Appeals, G.R. No. 136368, January 16, 2002.

27
SEC. 8. Designation of the offense. – The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no designation
of the offense, reference shall be made to the section or subsection of the statute punishing
it.

28
U.S. v. Panczko, 367 F. 2d. 737 (1966).
29
In its April 29, 2003 Resolution, the respondent’s allusion of loud whispers caused by a
suspicion that this Court or any member of this Court had been manipulated by politics in this
government was rejected by the Court, thus:

"The respondent’s allusion of loud whispers caused by a suspicion that this Court or
any member of the Court had been manipulated by politics in this government when
it resolved to set aside its 28 May 2002 Resolution is downright irresponsible. Not too
long ago, a distinguished member of the Court said:

Those who wear the black robes are enrolled in a noble mission; become different
persons; forfeit their past activities, friends and even relatives; and devote full time,
attention and effort to the rather reclusive and exclusive world of decision-making….

Quoting Rufus Choate, in part, a judge or justice in administering justice "shall know
nothing about the parties, everything about the case. He shall do everything for
justice; nothing for himself; nothing for his friend; nothing for his patron; nothing for
his sovereign." All members of the Court acted on and resolved petitioners’ motion
for reconsideration as well as respondent’s motion to recuse Justice Callejo, Sr. in
light of their respective study of the records and the relevant laws and rules after due
deliberation…. (Rollo, Vol. III, p. 1499).

30
Lassite v. Department of Social Services, 68 L.Ed.2d. 640 (1981).

31
Entitled and docketed as Lacson v. Department of Justice, Civil Case No. 01-100933 for
prohibition with a prayer for a temporary restraining order. (CA Rollo, p. 29).

32
There were 27 accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. Except for
Inspector Manuel Alvarez, the said accused were also charged in Criminal Cases Nos. 01-
101102 to 01-101112. Only the respondent filed his petition in said case.

33
SEC. 7. Former conviction or acquittal; double jeopardy. – When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense charged, or for
any attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint or
information.

However, the conviction of the accused shall not be a bar to another prosecution for
an offense which necessarily includes the offense charged in the former complaint or
information under any of the following instances:

(a) the greater offense developed due to supervening facts arising from the
same act or omission constituting the former charge;

(b) the facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint or
information; or
 (c) the plea of guilty to the lesser offense was made without the consent of
the prosecutor and of the offended party except as provided in Section 1(f) of
Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in
part the judgment, he shall be credited with the same in the event of conviction for
the graver offense.

34
CA Rollo, pp. 8-9. (Underscoring supplied).

35
Id. at 110.

36
This should read "Justice Panganiban."

37
This should read "Atty. Fortun."

38
This should read "Justice Panganiban."

39
TSN, 19 February 2002, pp. 220-225. (Underscoring supplied).

40
TSN (CA Rollo), 31 July 2001, pp. 12-14. (Underscoring supplied).

41
Ibid., pp. 15-18. (Emphasis ours).

42
Memorandum of Petitioner; CA Rollo, p. 378.

43
Am Jur, Evidence, §770.

44
Ibid. §771.

45
Glick v. White Motor Company, 458 F.2d. 1287 (1972).

46
People v. Hernandez, 260 SCRA 25 (1996), citing 31 C.J.S. 537.

47
797 F.Supp. 381 (1992), citing Glick v. White Motor Co., supra.

48
Branz v. Hylton, 265 N.W. 16 (1936).

49
15 Ruling Case Law, 854 and 328.

50
The records from the Sandiganbayan and the RTC which were elevated to this Court
consisted of 11 volumes plus 11 additional folders per Letter dated April 26, 2002.

51
Motion for Reconsideration, p. 33; Rollo, Vol. III, p. 1423; Consolidated Reply, p. 28.

52
Rollo, Vol. I, p. 465.

53
Branches 76, 86, 95, 102, 103 and 219.
The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

YNARES-SANTIAGO, J.:

This is to reiterate my dissent to the unbelievable about-face by the Court in the April 1, 2003
Resolution confirmed and renewed in its latest Resolution.

The reasons for this continuing dissent are basically similar to those expressed in three Dissenting
Opinions to the April 1, 2003 Resolution.1 Nothing has changed in the history of the charges against
Senator Panfilo M. Lacson except the disturbing and unusual ruling of this Court now.

If the charges against Senator Lacson are to be relentlessly pursued, the pursuit must be done in a
constitutional and fair manner. It is the use of legal short-cuts, pained reasoning and the hasty
procedure after several years of inaction which constrain this dissent. If Senator Lacson is to be
found guilty of participation in multiple murder, it should be only after due process is followed.

The new majority Resolution is a volte-face, a complete turn-around from the previously unanimous
judgment dated May 28, 2002.

The 2002 Resolution of the Court remanded the Government’s petition to the Regional Trial Court of
Quezon City to ascertain important factual issues. The Resolution was concluded beyond doubt or
ambiguity without any dissenting vote.

The issues sought to be revived were all resolved two years ago. What the Court unanimously
retired should be allowed to rest. Instead, the Court now wants to allow the use of the strong arm of
the law to oppressively prosecute and persecute. 1a\^/phi1.net

If the petitioners can show strong compelling reasons, newly discovered, or some deeply held
convictions based on a genuine sense of justice or irresistible considerations of equity, I could
concur to ignore established procedure.

Unfortunately, all I can discern here is allowing the use of the strong arm of the law to oppressively
prosecute a public officer whom the powers-that-be detest and whom they seek to render completely
ineffective.2

In the April 1, 2003 Resolution, I concurred with Mme. Justice Angelina Sandoval-Gutierrez who, like
me, started her long judicial career as a municipal trial judge and, later, judge of a regional trial court.
I agreed with the conclusion that the petitioner’s right to speedy trial and speedy disposition of cases
were violated and the filing of new informations constitute persecution. I concurred that in the
prosecution of an accused he must not be perceived as an intractable enemy, and that the over-
eagerness to prosecute respondent is a clear example of persecution.

There is nothing in the pleadings after our dissent to the April 1, 2003 Resolution or in the
discussions of the respondent’s motion for reconsideration that shows our May 28, 2002 Resolution
was wrong or that the Court was correcting an injustice when it suddenly reversed itself.
Respondent stresses the need for compliance with the rule of law, the primacy of the Constitution
over acts of State, and the independence of the judiciary. When respondent urges the Court to
remember that it is not a trier of facts, he raises a fundamental threshold question. It involves the
application of what has been described as an immutable principle of justice,3 the essence of ordered
liberty,4 so rooted in the traditions and conscience of our people as to be ranked as fundamental, 5 a
canon of civilized decency,6 a guarantee against the oppressions and usurpations of royal
prerogatives,7 and a responsiveness to the supremacy of reason and obedience to the dictates of
justice.8 He is asking for due process.

Under the Constitution, this Court resolves "cases in which only an error or question of law is
involved."9 It is therefore not a trier of facts.

The Court itself in the April 1, 2003 Resolution summarized the facts to be resolved:

1. Whether the provisional dismissal of the cases had the express consent of the accused;

2. Whether it was ordered by the court after notice to the offended party;

3. Whether the two-year period to revive it has already lapsed;

4. Whether there is any justification for the filing of the cases beyond the two year period;

5. Whether notices to the offended parties were given before the cases were dismissed by
then Judge Agnir;

6. Whether there were affidavits of desistance executed by the relatives of the three other
victims; and

7. Whether the multiple murder cases against respondent are being revived within or beyond
the two-year bar.10

The facts to be resolved requires submission of evidence. They are material facts because proof of
their actuality is needed to enable the Court to render judgment on the basic issues raised. Evidence
to prove the facts in issue have to be introduced in accordance with the principles of substantive law
and the rules of pleading, practice and procedure. The facts are in dispute because one party
alleges their existence while the other denies them, both with some show of reason. 11 If the
unanimous judgment in 2002 is to be reversed by a new majority, a remand to ascertain these facts
outlined is imperative.

Facts have to be established by evidence, not by inferences, not by suppositions, and certainly not
by the augury of divination. Yet, the majority precisely proceeded to do it that way.

If the facts material to the Court’s judgment were found by the new majority from the records, how
could the unanimous Court have missed so many of these significant facts in 2002?

If doubts are to be resolved and suppositions and fallacies avoided, every method of getting the truth
through adversarial proceedings before a trial court must be explored. Let the Regional Trial Court
which is a trier of facts do the job.

If, for instance, the Court suddenly discovers that there has been no trial, not even a pre-trial in the
almost two decades a case has been pending; if the questions raised are complicated, complex and
tricky; if there is no evidence in the records, no transcripts of stenographic notes and no exhibits; the
Court would have to refer the factual issues to a trial court. It should not arrive at a summary
judgment based on the pleadings before it. This is what the new majority has done.

A key factual issue is the applicability to the cases against respondent of the rule on provisional
dismissal found in the Revised Rules of Criminal Procedure. Section 8 of Rule 117 thereof provides:

Provisional Dismissal – A case shall not be provisionally dismissed except with the express consent
of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become permanent one (1) year after the issuance of the order
without the case having been reviewed. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revised.

The determination of whether or not the above rule applies in this case entails factual issues. Has
the two-year period expired? Was the dismissal of the cases with the express consent of the
accused? Was there notice to the offended party? By their very nature, these questions justify a
remand to the trial court.

The new majority first tackles the application of the two-year time bar in Rule 117 to this case. The
criminal cases were dismissed by then Judge Wenceslao Agnir, Jr. on March 29, 1999. The Revised
Rules of Criminal Procedure took effect the following year on December 1, 2000. If the new rule is
not applied retroactively, would the old rule, where there was no time bar, apply?

The new majority rules that the time bar should apply only prospectively. I find this decision
disturbing if it is indicative of a novel approach to individual liberties. The Bill of Rights is a
1a\^/phi1.net

statement of the liberties of individuals protected against exertions of government power.

The ponencia seeks to protect the "rights" of the State against its citizens and invokes the Bill of
Rights in the process.

The Bill of Rights refers to fundamental individual rights and the guaranteed protection is against
Government or any of its officials. It cannot be invoked against actions of private parties unless
private action is backed by government power.

Government exercises powers not rights. When the Constitution provides that "no person shall be
deprived of life, liberty, or property without due process of law,"13 the "person" referred to is not the
State. When we mention in our decisions that the State also deserves due process, it is merely a
quaint way of saying that the law and the rules should be followed if intended to protect State
interests. But never should the rights of a citizen be weighed against the non-existent rights of the
State which should be recognized and denominated as the powers of the State.

There is sometimes a balancing of individual rights against State power where public interest is
involved. The individual is always at a terrific disadvantage when a basic right is weighed against the
awesome powers of a State. There is no need for balancing in this case.

If the issue involved is protection of a citizen against overzealous criminal prosecutions, the reason
for ruling against him should never be due process rights of the State. The Dissenting Opinion of Mr.
Justice Reynato S. Puno in the April 1, 2003, with which I also concurred, discusses the origin of the
amended rule, its nuances and reasons for being, and the inflexibility of the permanent time bar
once the two-year period is reached. The Rule is intended to protect the rights of the accused, not to
make it easier for the Government to prosecute him. Here, the Court wants us to allow the use of a
protection for the citizen against that citizen. Its enactment becomes counter-productive. The
extensive and learned discussion of the Honorable Chairman of the Committee on the Revision of
the Rules of Court is glossed over. It should be re-read.

The amended rule is intended to prod the Government into a more faithful and accountable
performance of duty, to avoid the tyrannical Damocles’ sword hanging indefinitely over a person
whom the Government wants to coerce into indeterminate submission, and to stop the malaise of
public officers who are shiftless and lethargic and who are prodded into action only after the passage
of interminable time or when revenge or a desire to vex and oppress suddenly surfaces.

If the rule is a just rule, if its objectives are salutary and if its enforcement will mean an enlargement
of individual rights, why should a recent accused enjoy it to the exclusion of those with pending
cases when it was enacted? Justice should be for everyone especially those accused where
prosecution and trial have dragged for years and years. A rule should not protect the incompetence
or lethargy of Government prosecutors.

I submit that the new rule should be made retroactive. This interpretation is in line with simple
justice. The statement of the majority that the due process protections of the State and those of the
individual should be equal is dangerous for a Supreme Court to utter.

With all due respect, the justifications in the ponencia display an insensitivity to individual liberties.
The spirited defense of the powers of the State in the context of individual freedoms is bewildering to
say the least. It is hoped that such a cavalier approach to the Bill of Rights is a passing aberration
and that the Court will again stand firmly as the constitutional bulwark against State power and
oppression. The Court should not remain silent and, more important, should take a firm stand when
a citizen is harassed and persecuted by the formidable powers of Government.

The statement that the ruling of the Court in 2003 and any ruling today would be the same,
regardless of who the parties involved are, whether a Senator, presidentiable, or an ordinary citizen
is, in the light of our judgment in this case, is not believable.

The bedrock issue underlying all aspects of the about-face decision sought to be reconsidered
involves the correct approach to the Bill of Rights. If the interpretation of the amended rule shows a
back-sliding of the Court’s traditional approach to individual liberty, that interpretation must be
avoided. The history of the due process clause goes back to the beginning of the era of
enlightenment. It traces the step-by-step wresting of rights from absolution and monarchy. There is
no monarchy today but claims of authority against liberty are vested in State power.
The ponencia unwittingly dilutes a guarantee of liberty against a misinterpretation of State power.

In the resolution of whether the rule should be applied retroactively, we must divorce the issue from
the various personalities involved, and focus simply on the principles of interpretation that have
governed this Court since its inception.

The ponencia declares that there is no express requirement for the revised rule to be given
retroactive application. It states that under Rule 144 of the Rules of Court, the Rules shall not be
applied "to actions pending before it if in its opinion their application would not be feasible or would
work injustice, in which event, the former procedure shall apply."12 Rule 144, for ready reference,
provides:
These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take
effect, and also all further proceedings in cases then pending, except to the extent that in the opinion
of the court their application would not be feasible or would work injustice, in which event the former
procedure would apply. (underscoring supplied.)

In the same breath, the ponencia expresses that "[s]tatutes regulating the procedure of the courts
will be construed as applicable to actions pending and undetermined at the time of their passage. In
that sense and to that extent, procedural laws are retroactive."13 Criminal Cases Nos. Q-99-81679 to
Q-99-81689 are then characterized as having been long dismissed before the new rule took effect
on December 1, 2000. The ponencia goes on to state that:

[w]hen the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on
June 6, 2001, Criminal Cases Nos. Q-99-81679 to Q-99-81689 had long since been terminated. The
two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 but from December 1, 2000 when the new rule took effect.
While it is true that the Court applied Section 8 of Rule 110 of the RRCP retroactively, it did so only
to cases still pending with this Court and not to cases alreadyterminated with finality. (Citations
omitted, underscoring supplied.)14

There is a fundamental inconsistency in the foregoing statements. If one were to apply Rule 144, as
the ponencia has done, this would mean characterizing Criminal Cases Nos. Q-99-81679 to Q-99-
81689 as being pending proceedings as of the effective date of the Revised Rules of Criminal
Procedure, since this is what a plain reading of Rule 144 would require. This would go completely
against the statement of the same ponencia that characterizes Criminal Cases Nos. Q-99-81679 to
Q-99-81689 as having long since been terminated when the petitioner filed the Informations in
Criminal Cases Nos. 01-101102 to 01-101112. Were the proceedings pending as of the effective
date of the Revised Rules, or had they already been terminated? It is not pure legal quibbling to
demand a consistent characterization of Criminal Cases Nos. Q-99-81679 to Q-99-81689. One
cannot characterize these cases as pending, invoke their pendency as basis for the non-retroactive
application of Rule 117, Section 8, and then characterize them as having been terminated in order to
similarly deny the retroactive application of the new procedural rules. The ponencia’s bases for the
non-retroactive application of the revised rule are completely impossible to reconcile.

Regardless of the characterization of Criminal Cases Nos. Q-99-81679 to Q-99-81689, I submit that
Rule 117, Section 8 should be given retroactive application, consistent with the principles of statutory
construction of procedural rules.

Procedural laws, by definition, prescribe rules and forms of procedure of enforcing rights or obtaining
redress. They include rules of pleadings, practice and evidence. As applied to criminal law,
procedural law – as distinguished from substantive law – is that which provides or regulates the
steps by which one who commits a crime is to be punished.15

In interpreting procedural rules, this Court, in the 1927 case of Hosana v. Diomano and
Diomano,16 laid down the rule that procedural rules will be construed as applicable to causes of
action accrued, and actions pending and undetermined, at the time of their passage, unless: (1)
such actions are expressly excepted; or (2) vested rights would be disturbed by giving them a
retroactive application.17

The causes of action in Criminal Cases Nos. 01-101102 to 01-101112 – in which the Informations
allege essentially the same operative facts as those alleged in Criminal Cases Nos. Q-99-81679 to
Q-99-81689, with the primary difference that respondent is charged as a principal and no longer as
an accessory – had undoubtedly already accrued as of December 1, 2000, the effective date of the
Revised Rules of Criminal Procedure. Thus, whether the criminal actions in question were "pending",
or the causes of action had merely "accrued", the retroactive application of the RRCP is called for.

Undoubtedly, there is no express exception to the retroactive application of Rule 117, Section 8.
Thus, unless vested rights are disturbed, its retroactive application is clearly mandated.

On this point, it has been held that the retroactive application of procedural laws is not violative of
any right of a person who may feel that he is adversely affected.18 This is because of the
fundamental principle that, as a general rule, no vested right may attach to nor arise from procedural
laws. This is a principle that we have enunciated in a long line of cases. 19 A person has no vested
right in any rule of law which entitles him to insist that it shall remain unchanged for his benefit. 20

The ponencia seems to hold that vested rights would indeed be disturbed if Rule 117, Section 8
were given retroactive application. Specifically, this argument focuses on the State’s right to due
process, which purportedly would be violated by the retroactive application of the questioned
procedural rule. Thus, the ponencia asserts that:

when the Court approved Section 8, it intended the new rule to be applied prospectively and not
retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for
which it was intended, namely, to give the State a period of two years from notice of the provisional
dismissal of criminal cases with the express consent of the accused. It would be a denial of the
State’s right to due process and a travesty of justice for the Court to apply the new rule retroactively
in the present case as respondent insists, considering that the criminal cases were provisionally
dismissed by Judge Agnir, Jr. on March 19, 1999 before the new rule took effect on December 1,
2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive
consequences to the State and to the victims of crimes and their heirs.

xxxxxxxxx

The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the
Court. It must be stressed that the institution and prosecution of criminal cases are governed
by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8
had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by
a capricious retroactive application of the new rule.21

In making these assertions, the ponencia has undoubtedly placed a premium on the State’s right to
procedural due process.

The State’s right to due process must be viewed from proper perspectives. It cannot be said that
such right would be violated by a retroactive application of Rule 117, Section 8. It appears clear that
the invocation of due process is an attempt to cloak a flawed argument using a Constitutional
precept. As earlier intimated, the ponencia is unable to pinpoint with specificity exactly how the "due
process right" of the State had already vested as of the passage of the Revised Rules, and how this
"vested right" could be violated by the retroactive application of Rule 117, Section 8.

Stripped to its basics, procedural due process is a matter of nothing more or less than procedural
fairness. There would be nothing procedurally unfair about giving a retroactive application to Rule
117, Section 8. Precisely, this Court is specifically empowered by the Constitution to promulgate
such rules of procedure, and, in the past, we have had no qualms about applying such rules of
procedure retroactively, ruling firmly that no vested rights are impaired even if the effect of the
retroactive application of such rules would be to divest a court or tribunal of its jurisdiction. In such
instances, we have advised the party-litigants that their rights have not been impaired. 22
There is no cogent reason to depart from this principle even if, in this case, the People is one of the
party-litigants. Departing from the fundamental principle in this case seems to be an instance of
selective statutory construction to achieve the desire to attain a particular result.

If anything, the fact that the People is one of the party-litigants should call for a more vigilant
application of the Rules strictly against the People or the State and liberally in favor of the private
individuals who might be benefited by the retroactive application of the procedural rule.

Although it is true that the prosecutors would have no inkling, as of the provisional dismissal of the
case on March 29, 1999, that the Revised Rules of Criminal Procedure would contain Rule 117,
Section 8, they undoubtedly had notice as of the effective date thereof on December 1, 2000. From
that date, they had almost four months in which to revive Criminal Cases Nos. Q-99-81679 to Q-99-
81689, had there been a need to do so. In cases involving purely private litigants, we have not
hesitated in dismissing cases when a party or parties have not been vigilant in protecting their
rights.23 At the risk of being repetitive, there is no reason to depart from this principle simply because
the State is a litigant.

Moreover, it is an established principle of statutory construction that penal laws are strictly construed
against the State and liberally in favor of the accused.24 Any reasonable doubt must be resolved in
favor of the accused.25

By way of example, we have not hesitated in the retroactive application of such laws as Republic Act
No. 7659, which lowered the penalties for certain crimes, insofar as the lower penalty was favorable
to the accused. In the cases of People v. Simon,26 People v. Manalo,27Danao v. Court of
Appeals,28 and People v. Piasidad,29judgment had already been rendered by the respective trial
courts against the respective accused individuals in question. Pending appeal of the cases, the
legislature passed R.A. 7659, effective December 31, 1993. In addition to re-imposing the death
penalty, R.A. 7659 lowered the penalty imposable on individuals who had violated the Dangerous
Drugs Act. This Court invariably applied the lower penalty retroactively, even if the crimes had been
consummated, prosecution had been initiated, and a decision had in fact already been rendered by
the trial courts while the higher penalties were still imposable.

As a more extreme example, in the 1996 case of Cruz v. Correctional Institution for Women in
Mandaluyong,30the accused therein was already serving a final and executory penalty of reclusion
perpetua. During her service of this sentence, R.A. 7659 was passed, lowering the penalty
imposable for the crime for which she was convicted. Even if her sentence was already being
served, this Court retroactively applied R.A. 7659 and ordered her immediate release since she had
already served the maximum of her sentence. 1a\^/phi1.net

From a particular perspective, granting the retroactive application of penal laws would likewise
impair the "vested" rights of the State in seeing to it that criminals are given just retribution. In such
instances, though, we have not hesitated in putting a primacy on the rights of the private individuals.
The retroactive application of Rule 117, Section 8 is thus called for.

We move on to another factual issue to illustrate that, if we have to change our minds – and I repeat
that our Resolution dated May 28, 2002 correctly resolved the issue – the Court should get the
factual answers through a remand.

Did the accused give express consent to the provisional dismissal of his case?
The Court in its first Resolution stated that "(i)t was respondent Lacson himself who moved to
dismiss the subject cases for lack of probable cause before then, Judge Agnir, hence, it is beyond
argument that their dismissal bears his express consent."

Now, the majority finds the motion to dismiss as an inadequate mode of expressing consent.
Obviously, the Court wants a formal manifestation filed in court where an accused has to declare, "I
hereby consent to the provisional dismissal of my case."

The majority is asking too much. The amended Rule does not provide for a rigidly precise wording of
consent. There are no required magic words whose non-utterance would be fatal. There are no fixed
and supererogatory incantations, no pigeon-holes of ritual where set formalities must be fitted. When
an accused moves that his case be dismissed, that is a stronger mode of consent than merely
saying, "I hereby consent." When the respondent's counsel answered "none" to the question, "was
there an express conformity?", he was referring to a formal manifestation of "yes, your Honor, the
accused consents." There was no such pleading or manifestation. However, the lawyer's so-called
"admission," taken out of context, cannot overrule the indubitable fact that the accused moved for a
dismissal of his case. An implied admission of counsel cannot be given greater weight than a
consent given through a formal motion to dismiss.

As Mr. Justice Cardozo said long ago: "The law has outgrown its primitive stage of formalism when
the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view
today."31

The majority is abetting harassment and oppression when it rules that a motion to dismiss is not a
consent to dismissal. I have to dissent on this issue.

Was there notice to the offended party?

This is another factual issue that is best determined at the trial level. It calls for evidence.
The ponencia again relies on an ambiguous admission of counsel in the course of tricky cross-
examination that there was no formal notice.

It is probable that there was no formal notice in the form of a letter with a registry return card
accomplished by the recipient. The purpose of notice under the Rule is to let the offended party
know and to avoid complicity to prejudice the offended party. If the offended party was informed and
had knowledge of the forthcoming provisional dismissal, there was notice to him.

The matter of notice should be elicited from the offended party during trial. If the ponencia refuses to
treat a notice to the lawyer as a notice to his client, it should, at least, ask the client himself to affirm
or deny that he was informed about the provisional dismissal. The remand is called for in this regard.
If a lawyer is given notice on a material issue, he is assumed to have passed on the notice to his
client. The rule that notice to a lawyer is notice to the client should apply when the basic protection of
the accused is involved and the protection is part of the package of rights of an accused. There may
be instances in civil law or mercantile law where a formal notice, duly acknowledged by the
addressee, is required. In criminal law, any statute or rule intended to protect the rights of an
accused should be interpreted in his favor.

There is no question that the amended rule on provisional dismissal of criminal cases is intended to
protect the rights of an accused. The majority overlooks the fact that if the rule was supposed to help
or favor the State, there would have been no reason to introduce the amendment. The rule should
have been left the way it was. The rule was intended to curb inaction and abuses by government
prosecutors.
In deciding cases of constitutional significance, the Court should be more concerned with substance
rather than form32 or some other consideration, with general principles than technical points, to
support judgments.

In one eloquent dissent of Mr. Justice Hugo Black of the United States Supreme Court, he stated
that not the least of the virtues of a provision of the Bill of Rights is the protection given to each
member of the smallest and most unorthodox minority.33 Respondent in the present case may not
belong to the smallest minority but he is clearly unorthodox and a member of the minority political
party. We must avoid not only any political color in our work but also the appearance of political
color.

Appearances are unfortunately important in our functions and somehow, the public image of the
Court will suffer because of the way the Court has decided the motion for reconsideration of the
respondent who has become the target of powerful personalities in the political arena. Equating the
awesome powers of the State with individual freedoms and formally extending the protections of the
Bill of Rights to the State is not a healthy development. The Court should not give the impression
that Bill of Rights protections such as due process should equally extend to and protect the State in
the same way that they protect individual persons. Again, this is not only error; it is also not healthy
for the development of the law of the Constitution.

At any rate it is well to listen to Mr. Justice Black when he says that laws aimed at one political group
and I may add, at one political personage, however rational these laws may be in their beginning,
generate hatred and prejudices which rapidly spread beyond control. Too often it is fear which
inspires such functions and nothing is more reckless or contagious.

In the present case, the concern involves not a law enacted by Congress but a judgment rendered
by the Supreme Court. The importance of these kinds of decisions on national institutions and the
development of law cannot be ignored or denied.

WHEREFORE, I dissent from the majority resolution. I vote to grant the respondent’s Motion for
Reconsideration and to reinstate the Court’s Resolution dated May 28, 2002.

Footnotes

1
Separate Dissenting Opinions of Justices Reynato S. Puno and Angelina Sandoval-
Gutierrez, with which I concurred, and of Justice Jose C. Vitug.

2
See Salonga v. Hon. Paño, et al., G.R. No. 59524, 18 February 1985, 134 SCRA 438.

3
Twining v. New Jersey, 211 U.S. 78 (1908).

4
Palko v. Connecticut, 302 U.S. 319 (1937).

5
Snyder v. Massachusetts, 219 U.S. 97 (1934).

6
Adamson v. California, 332 U.S. 46 (1947).

7
Hurtado v. California, 110 U.S. 516 (1884).
8
Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 127 Phil. 306 (1967).

9
Constitution, Art. VIII, Sec. 5 (2) (e).

10
Resolution, April 1, 2003, p. 3.

11
Ponce v. Sagario, 85 Phil. 84 (1949).

13
Constitution, Art. III, Section 1.

12
Resolution, p. 10.

Id., p. 14, citing Tan v. Court of Appeals, G.R. No. 136368, 16 January 2002, 373 SCRA
13

524.

14
Id., pp. 14-15.

15
Bustos v. Lucero, 81 Phil. 640, 650 (1948); Aquino v. Military Commission No. 2, G.R. No.
37364, 9 May 1975, 63 SCRA 546; Subido, Jr. v. Sandiganbayan, 334 Phil. 346, 355-56
(1997); Tan v. Court of Appeals, supra.

16
56 Phil. 741 (1927).

Hosana v. Diomano and Diomano, supra, citing Black on Interpretation of Laws, p. 265.
17

See also Oñas v. Sandiganbayan, G.R. No. 85999, 2 October 1989, 170 SCRA 261.

18
Gregorio v. Court of Appeals, 135 Phil. 224 (1968); Tinio v. Mina, 135 Phil. 504 (1968).

19
Billiones v. CIR, 122 Phil. 25 (1965); Systems Factors Corporation, et al. v. Court of
Appeals, G.R. No. 143789, 27 November 2000, 346 SCRA 149; Unity Fishing Corporation,
et al. v. Court of Appeals, G.R. No. 145415, 2 February 2001, 351 SCRA 140; Serrano v.
Court of Appeals, G.R. No. 139420, 15 August 2001, 363 SCRA 223.

Benguet Consolidated Mining Co. v. Pineda, 98 Phil 711 (1956); Laurel v. Misa, 76 Phil
20

372 (1946).

21
Resolution, pp. 11-12.

22
Hosana v. Diomano and Diomano, supra; Oñas v. Sandiganbayan, supra.

23
Hodges v. Yulo, 81 Phil. 622 (1954).

24
People v. Estapia, 37 Phil. 17 (1917); People v. Jackson, 54 Phil. 176 (1929); People v. Yu
Jai, 99 Phil. 725 (1956); People v. Terrado, 211 Phil. 1 (1983); People v. Deleverio, 352 Phil.
382 (1998).

25
United States v. Abad Santos, 36 Phil. 243 (1917); United States v. Madrigal, 27 Phil. 347
(1914); People v. Atop, 349 Phil. 825 (1998).

26
G.R. No. 93028, 29 July 1994, 234 SCRA 555.
 27
315 Phil. 547 (1995).

28
313 Phil. 354 (1995).

29
331 Phil. 274 (1996).

30
331 Phil. 40 (1996).

Quoted in the Dissenting Opinion of Justice Gregorio Perfecto in Contreras and Gingco v.
31

Felix and China Banking Corp., 78 Phil. 570, 583 (1947).

32
Fidelity Bank v. Swope, 274 U.S. 123.

33
American Communications Association (CIO) v. Douds, 339 U.S. 382.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

"A new law is always enacted in the persuasion that it is better than the former one. Its efficacy,
therefore, must be extended as far as possible, in order to communicate the expected
improvement in the widest sphere."1

On April 1, 2003, I stood apart from the rest of my brethren in granting petitioners’ Motion for
Reconsideration of this Court’s Resolution dated May 28, 2002.2 So engrossed was the Court then in
determining the applicability of Section 8, Rule 117 of the 2000 Revised Rules of Criminal Procedure
to respondent’s case that it seems to overlook the more fundamental concept of speedy trial and
speedy disposition of cases – the very foundation of respondent’s right to be permanently
discharged of the criminal cases filed against him.

My first dissent rests mainly on the premise that the circumstances surrounding respondent’s case,
i.e. the dismissal of Criminal Cases No. Q-99-81679 to 89 and their refiling two years after,
effectively elicit a speedy trial analysis or inquiry.3 The time interval between the dismissal of the
initial charges and the subsequent refiling thereof had crossed the threshold dividing ordinary from
"presumptively prejudicial" delay, thus, before anything else, respondent’s predicament should be
weighed on the basis of the Constitutional provisions on speedy trial and speedy disposition of
cases. Section 8, Rule 117 must come second only.

At this juncture, it bears reiterating that statutes (and with more reason, rules) cannot be effective to
place any limitation on the constitutional right,4 and therefore they should not be regarded as
"definitions" of the constitutional provision, but merely as implementing statutes passed pursuant to
it.5 It is thus conceivable that the constitutional provision may be violated although an implementing
statute is not.6 With this Court’s fixation on Section 8, Rule 117, it in effect missed the bigger picture.
Respondent’s repeated invocation of his constitutional right to speedy trial and speedy disposition of
cases was drowned by arguments on the applicability of the rule only implementing such right.
Contrary to the express provision of Section 10, Rule 119 of the same Rules that "no provision of law
on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of
denial of the right to speedy trial guaranteed by section 14 (2), Article III of the 1987 Constitution,"
Section 8, Rule 117 effectively operates as a bar to respondent’s bid for a speedy trial analysis or
inquiry. This is very unfortunate.

Having fully articulated in my first dissent the primordial reason why I cannot join the majority, I am
taking this second occasion to expound on the nagging issue of whether Section 8, Rule 117 applies
to respondent’s case.

In denying respondent’s present Motion for Reconsideration, the majority ruled that: (a) Section 8,
Rule 117 cannot be applied retroactively to respondent’s case for to do so would result in "absurd,
unjust and oppressive consequences to the State and the victims of crimes and their heirs;" and (b)
respondent failed to comply with the essential pre-requisites of Section 8, Rule 117 particularly that
of accused’s "express consent" to the provisional dismissal.

I dissent.

I – Section 8, Rule 117 should be applied retroactively

Settled in our jurisprudence is the principle that when a new law will be advantageous to the
accused, the same shall be given retroactive effect.7 Favorabiliab sunt amplianda, adiosa
restrigenda. (Penal laws that are favorable to the accused are given retroactive effect). 8 For a long
period, this has been the settled doctrine in countries whose criminal laws are based on the Latin
system. Article 22 of our Revised Penal Code reads:

"Art. 22. Retroactive effect of penal laws. – Penal laws shall have retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of
Article 62 of this Code, although at the time of the publication of such laws a final sentence has been
pronounced and the convict is serving the same."

This article is of Spanish origin and is based on Latin principles, thus, in the interpretation thereof,
this Court must have recourse to Spanish or Latin jurisprudence.9 That the term "penal laws" or
"leyes penales" as employed in Article 22, relates not only to laws prescribing penalties but also to
limitations upon the bringing of penal actions, was pronounced in the early case of People vs.
Parel.10 Thus, to justify the retroactive application of Section 8, Rule 117 on the basis of Article 22 is
in order. Considering its genesis and its underlying principles, there is no doubt that whenever a new
statute dealing with crimes establishes conditions more lenient or favorable to the accused, the
statute becomes retroactive and the accused must receive the benefits of the new condition. As long
as this provision so remains in force, it is of general application to all penal statutes, past, present,
future and furnishes the rule for determining to what extent they are retroactive or merely
prospective. And unless a penal or criminal statute, expressly or by necessary implication, provides
that it shall not be regarded as retroactive, it becomes subject to the rule laid down by that
article.11 Evidently, by ruling against the retroactive application of Section 8, Rule 117, the majority
casts aside one of most basic principles in our legal system.

Now, in an attempt to justify its position, the majority resorted to the alleged statutory purpose of
Section 8, Rule 117. It argues that "when the Court approved Section 8, it intended the new rule to
be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it
would defeat the very purpose for which it was intended, namely, to give the State a period of two
years from notice of the provisional dismissal of criminal cases with the express consent of the
accused." I believe the purpose cited is inaccurate. Section 8, Rule 117 was introduced owing to the
many instances where police agencies have refused to issue clearances, for purposes of
employment or travel abroad, to persons having pending cases, on the ground that the dismissal of
such cases by the court was merely provisional, notwithstanding the fact that such provisional
dismissal, more often than not, had been done five or ten years ago.12 Obviously, Section 8, Rule
117 was introduced not so much for the interest of the State but precisely for the protection of the
accused against protracted prosecution. This Court’s Committee on Revision of the Rules of Court
clearly saw the prejudice to the rights of the accused caused by a suspended provisional dismissal
of his case. Hence, if we are to follow the majority’s line of reasoning that Section 8, Rule 117 "must
be read according to its spirit or intent," then the logical conclusion is the retroactive application of
the rule. Certainly, it is the construction that will advance the object and secure the benefits
intended.

The Court, in setting a limit to the State’s right to re-prosecute, has recognized the injustice and the
evil accompanying suspended provisional dismissals. It has impliedly acknowledged that the
situation sought to be remedied is unjust and undesirable. Now, is it not inconsistent for this Court to
suspend the application of the new rule to respondent’s case just because the rule was passed after
the provisional dismissal of his cases? Note that the situation sought to be remedied is present in
respondent’s case. To my mind, if this Court will refuse to extend the benefit of the new rule to
respondent, it will be guilty of an inconsistency in view of its implied admission that the situation
sought to be remedied has caused injustice to respondent.

In several cases, we applied the provisions of the 2000 Rules of Criminal Procedure
retroactively.13 The same should be done with Section 8, Rule 117 considering that it is merely a
reinforcement of the constitutional right to speedy trial and speedy disposition of cases. With or
without it, petitioners are duty bound under the Constitution to proceed with speed in prosecuting
respondent’s cases. Consequently, all the time prior to the promulgation of Section 8, Rule 117,
petitioners were not precluded from re-filing the cases against respondent. It may be recalled that
Criminal Cases Nos. Q-99-81679 to 89 were dismissed on March 29, 1999.14 The Department of
Justice (DOJ) re-investigated the cases only upon its receipt on March 29, 2001 of General Leandro
Mendoza’s letter indorsing the affidavits of P/S Ins. Abelardo Ramos and P/ Ins. Ysmael Yu.
On June 6, 2001, new Informations were filed against respondent. Clearly, from March 29, 1999 to
March 29, 2001, petitioners had the opportunity to refile the new Informations against respondent.
That they failed to do so, even after acquiring knowledge of the rule on December 1, 2000 and
onwards, only speaks of official negligence and lethargy. It cannot therefore be argued that the
State’s right to prosecute within the two-year period has been reduced and would cause injustice to
it and the offended parties. If at all, what was reduced was the State’s lackadaisical attitude borne by
this nation’s years of tolerance and indifference.1awphi1.nét

Surely, I cannot countenance "official indolence" by holding that if only the State had known it would
lose its right to prosecute after the lapse of the two-year period, it would have immediately refiled the
new Informations against respondent. To hold so is to advance the view that the State’s duty to
prosecute promptly depends on the threat of a punitive rule and not on the mandate of the
Constitution.

Corollarily, while there is truth to the statement that in determining the retroactivity of legislation,
elementary considerations of fairness dictate that individuals should have an opportunity to know
what the law is and to conform their conduct accordingly; settled expectations should not be lightly
disrupted. However, legislations readjusting rights and burdens cannot be adjudged unlawful simply
because it upsets settled expectations, even if it imposes a new duty or liability based on past
acts.15 That the State settled expectation, i.e. its entitlement to the two-year period, was to be
disrupted by a retroactive application of Section 8, Rule 117 does not necessarily result to injustice.
Section 8, Rule 117, by limiting the state’s right to re-prosecute, partakes of the nature of a statute of
limitations which is really "an act of grace or amnesty " that must be liberally applied in favor of the
accused. Wharton, in his work on Criminal Pleading and Practice, 9th ed., says in section 316:

"We should at first observe that a mistake is sometimes made in applying to statutes of limitation in
criminal suits the construction that has been given to statutes of limitation in civil suits. The two
classes of statutes, however, are essentially different. In civil suits the statute is interposed by the
legislature as an impartial arbiter between two contending parties. In the construction of the statute,
therefore, there is no intendment to be made in favor of either party. Neither grants the right to the
other, there is therefore no grantor against whom the ordinary presumptions of construction are to be
made. But it is otherwise when a statute of limitation is granted by the State. Here the State is the
grantor, surrendering by act of grace its rights to prosecute, and declaring the offense to be no
longer the subject of prosecution. The statute is not a statute of process, to be scantily or grudgingly
applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense;
that the offender shall be at liberty to return to his country, and resume his immunities as a citizen;
and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his
guilt are blotted out. Hence, statutes of limitations are to be liberally construed in favor of the
defendant, not only because such liberality of construction belongs to all acts of amnesty and grace,
but because the very existence of the statute is a recognition and notification by the legislature of the
fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive
periods in which it destroys proofs of guilt. Independently of these views, it must be remembered that
delay in instituting prosecutions is not only productive of expense to the State, but of peril to public
justice in the attenuation and distortion, even by mere natural lapse of memory, of testimony. It is the
policy of the law that prosecutions should be prompt, and that statutes enforcing such promptitude
should be vigorously maintained. They are not merely acts of grace, but checks imposed by the
State upon itself, to exact vigilant activity from its subalterns, and to secure for criminal trials the best
evidence that can be obtained."

The necessity, therefore, of applying the favorable new rule to respondent rests upon the principle
that the sovereign power cannot exercise its right to punish except only within those limits of justice
which that sovereign power has established as being just and equitable at the time of exercising that
right. Significantly, it has been held that the constitutional provision barring the passage of
retroactive laws protects only the rights of citizens; hence, a state may constitutionally pass a
retroactive law that impairs its own rights.16 Only private, and not public, rights may become vested in
a constitutional sense.17 Otherwise stated, there is a distinction between the effect to be given a
retroactive statute when it relates to private rights, and when it relates to public rights, public
rights may always be modified or annulled by subsequent legislation without contravening
the Due Process Clause.18

II – The statement of respondent’s counsel during the proceedings in the Court of Appeals that the
dismissal of respondent’s case was without his express consent cannot be >taken as a judicial
admission.

The statement of respondent’s counsel during the proceedings in the Court of Appeals that the
dismissal of respondent’s case was without his express consent cannot be taken as a judicial
admission. For one, the statement was uttered merely to support a legal argument. One thing clear
from the pleadings of the contending parties is their vacillation on whether or not respondent gave
his express consent to the dismissal. When respondent’s counsel was invoking double jeopardy, he
submitted that respondent did not give his express consent to the dismissal. It was the Solicitor
General who was arguing otherwise. Clearly, respondent’s counsel made the statement as a legal
strategy to justify the application of double jeopardy. That this was his intention is evident from his
oral argument in the Court of Appeals. Surely, this Court is duty-bound to determine the truth. The
inconstancy in the positions taken by both the prosecution and the defense only renders imperative
a more probing inquiry on the matter of express consent.

For another, the statement was not made for the purpose of avoiding the necessity of proof. It has
been held that an admission of fact by counsel for accused, to be admissible, must be voluntarily
and purposely made to avoid necessity of proof,19 or it must be distinct and formal made for the
express purpose of dispensing with proof of a fact on the trial.20 An admission made by counsel in
argument does not take the place of testimony,21 and is not sufficient to justify the trial court in
assuming that accused admitted such matter. Otherwise stated, only those admissions made by the
attorney during the trial of the case, which are solemnly and formally made for the purpose of
eliminating the proof of the fact admitted, that will bind the client. This is without question the just and
proper rule to be followed, for human life and liberty are too important to depend on the slip of an
attorney’s tongue during the pressure and rapidity of the trial. Thus, the accused is not bound by the
admissions made by his attorney in the course of his argument.22 His rights cannot be prejudiced by
any statement made by his counsel or any admission he may attempt to make23 and that an attorney
cannot admit away the life or liberty of accused in the face of a plea of not guilty. 24
1awphi1.nét

Corollarily, the majority’s view that "a cursory reading of the respondent’s motion for judicial
determination of probable cause (filed with the trial court) will show x x x that respondent was only
asking the court to determine whether or not there was probable cause for the issuance of a warrant
for his arrest and in the meantime, to hold in abeyance the issuance of said warrant" and not to
dismiss the case is hardly convincing. It appears from the Resolution25 dated March 29, 1999 of the
trial court that respondent’s prayer was for that court to "(1) make a judicial determination of the
existence of probable cause for the issuance of warrants of arrest; (2) hold in abeyance the issuance
of warrants in the meantime; and (3) dismiss the cases should the court find no probable
cause." Clearly, this third plea is a manifestation that the dismissal of the cases was with
respondent’s consent. While it is true that what he filed was a mere motion for the judicial
determination of probable cause and for examination of prosecution witnesses, the same was
anchored on the case of Allado vs. Diokno.26 There, we ruled that "[I]f upon the filing of the
information in court, the trial judge, after reviewing the information and the document
attached thereto, finds that no probable cause exists, he must either call for the complainant
and the witnesses themselves or simply dismiss the case. There is no reason to hold the
accused for trial and further expose him to an open and public accusation of the crime when
no probable cause exists." With this as respondent’s premise, I believe it is safe to conclude that
the dismissal was with his express consent. He would not have anchored his case in Allado vs.
Diokno if he did not desire its legal consequences.

Finally, I find the re-raffling of respondent’s cases to a special heinous court unnecessary. Supreme
Court Circular No. 7-7427 expressly provides that "when a case is dismissed for any cause or reason
whatsoever and the same is re-filed, it shall not be included in the raffle anymore but shall be
assigned to the branch to which the original case pertained. If, by mistake or otherwise, such case is
raffled and assigned to another branch, the latter must transfer the case to the branch to which it
originally belonged, in which event another case shall be assigned by raffle as replacement."
Considering that a provisional dismissal of a criminal case does not terminate it, 28 it is more
consistent with the majority’s theory that Criminal Cases Nos. Q-99-81679 to 89 be simply referred
back to the branch to which they originally belonged.

WHEREFORE, I vote to GRANT respondent’s motion for reconsideration.

Footnotes

1
F. C. von Savigny, Private International Law and the Retrospective Operation of Statutes, p.
344.

2
This Resolution remanded the present case to the Regional Trial Court, Branch 81, Quezon
City for a determination of several issues relative to the application of Section 8, Rule 117 of
the Revised Rules of Criminal Procedure on the dismissal of respondent’s Criminal Cases
Nos. Q-99-81679 to 89.

3
While there are jurisprudence to the effect that once the charges are dismissed, the speedy
trial guarantee is no longer applicable, (State vs. Marion, 404 U.S. 307; Dillingham vs. United
States, 423 U.S. 64; Barker vs. Wingo, 407 U.S. 514), however, I am convinced that the
peculiar facts of the present case render said jurisprudence inappropriate. On its face, the
Constitutional provision seems to apply to one who has been publicly accused, has obtained
dismissal of those charges, and has then been charged once again with the same crime by
the same sovereign. Nothing therein suggests that an accused must be continuously
charged in order to obtain the benefits of the speedy trial right. A natural reading of the
language is that the Speedy Trial Clause continues to protect one who has been accused of
a crime until the government has completed its attempts to try him for that crime. In Klopfer
vs. North Carolina, 386 U.S. 213, the prosecutor entered a "nolle prosequi with leave" after
the first trial ended in a mistrial. Under that procedure, the defendant was discharged from
custody and subjected to no obligation to report to the court. It was held that the indefinite
postponement of the prosecution, over defendant’s objection, "clearly" denied the defendant
the right to a speedy trial. The Court reasoned that the defendant may be denied an
opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over
his objection, throughout the unlimited period in which the solicitor may restore the case to
the calendar. During that period, there is no means by which he can obtain a dismissal or
have the case restored to the calendar trial. The prosecutor was required to take affirmative
steps to reinstate the prosecution; no charges were "actively" pending against Klopfer,
nevertheless, the court held that the speedy trial right applied.

4
21 Am Jur 2d § 1031, citing Ex parte State ex rel. Atty. Gen., 255 Ala. 443, 52 So. 2d 158
(1951); Hicks vs. People, 148 Colo. 26, 364 P. 2d 877 (1961); State vs. Strong, 8 Kan. App.
2d 589, 663 P. 2d 668 (1983); State vs. Stimson, 41 Was. App. 385, 704 P. 2d 1220 (Div. 3
1985).

5
State vs. Kuhnhausen, 201 Or. 478, 272 P. 2d 225 (1954).

6
Barela vs. People, 826 P. 2d 1249 (Colo.1992) State vs. Russel, 108 Idaho 58, 696 P. 2d
909 (1985); State vs. Strong, supra.

7
Article 22, Revised Penal Code.

8
Both consistency and sound legal principles demand that we seek our precedents in Latin
rather than in American jurisprudence. In United States vs. Cuna (12 Phil. 241 [1908]), it was
held that "neither English nor American common law is in force in these islands, nor are the
doctrines derived therefrom binding upon our courts, save only insofar as they are founded
on sound principles applicable to local conditions, and are not in conflict with existing law."

9
People vs. Parel, 44 Phil. 437, 441 (1923).
 10
Id.

11
Id.

12
Herrera, Remedial Law, Vol. IV, 2001 Ed. at 660.

13
People vs. Arrojado, G.R. No. 130492, January 21, 2001, 350 SCRA 679.

14
Rollo at 93-102.

16B Am Jur 2d §690, citing In re Lancy, 208 B. 481, 30 Bankr. Ct. dec. (CRR) 1018 (Bankr.
15

D. Ariz, 1997); DIRECTV, Inc. vs. F.C.C., 110 F. 3d 816 (d.c. Cir. 1997); State vs. L.V.I.
Group, 1997 ME 25, 690 A. 2d 960 (Me.1997).

16B Am Jur 2d § 697, citing Rousselle vs. Plaquemines Parish School Bd., 633 So. 2d
16

1235, 90 Ed. Law Rep. 519 (La. 1994) reh’g denied (Apr. 21, 1994); Town of Nottingham vs.
Harvey, 120 N.H. 889, 424 A 2d 1125 (1980).

17
Bradford vs. Suffolk Country, 257 A.D. 777 15 N.Y.S. 2d 353 (2d Dep’t 1939), judgment
affirmed as modified, 283 N.Y. 503, 28 N.E 2d 932 (1940).

18
Holen vs. Minneapolis-St. Apul Metropolitan Airports Commission, 250 Minn.

19
State vs. Thomas, 15 P. 2d 723, 726, 136 Kan. 400.

20
State vs. Redman, 8 S.E. 2d 623, 217 N.C. 483.

21
State vs. Marx, 60 A. 690, 78 Conn. 18.

22
Wharton’s Criminal Evidence, 2, 12th Edition, § 415.

23
22A C.J. S. §739, citing State vs. ShuffI, 72 P. 664, 9 Idaho 115.

24
Id., citing Pruitt vs. State, 294 P 629, 37 Ariz. 400.

25
Rollo at 93-103.

26
G.R. No. 113630, May 5, 1994, 232 SCRA 192.

27
September 23, 1974.

28
Jaca vs. Blanco, 86 Phil. 452 (1950).

III. Limitations

1.Pesigan v. Angeles, 129 SCRA 174 (1984)

 SECOND DIVISION

G.R. No. L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,

vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting
for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR
ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET
AL., respondents.

Quiazon, De Guzman Makalintal and Barot for petitioners.

The Solicitor General for respondents.

AQUINO, J.: ñé+.£ªwph!1

At issue in this case is the enforceability, before publication in the Official Gazette of June 14,
1982, of Presidential Executive Order No. 626-A dated October 25, 1980, providing for
the confiscation and forfeiture by the government of carabaos transported from one province to
another.

Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler
truck in the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur
with Padre Garcia, Batangas, as the destination.

They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur,
issued under the Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle
Rustling Law of 1974; (2) a permit to transport large cattle issued under the authority of the
provincial commander; and (3) three certificates of inspection, one from the Constabulary command
attesting that the carabaos were not included in the list of lost, stolen and questionable animals; one
from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one from
the mayor of Sipocot.

In spite of the permit to transport and the said four certificates, the carabaos, while passing at
Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police
station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation was
basis on the aforementioned Executive Order No. 626-A which provides "that henceforth, no
carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be transported
from one province to another. The carabaos or carabeef transported in violation of this Executive
Order as amended shall be subject to confiscation and forfeiture by the government to be distributed
... to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case
of carabaos" (78 OG 3144).

Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from
the Vinzons municipal nursery (Annex 1).

The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of
the carabaos allegedly valued at P70,000 and damages of P92,000. The replevin order could not be
executed by the sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles, who heard
the case at Daet and who was later transferred to Caloocan City, dismissed the case for lack of
cause of action.

The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the
Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the
Rules of Court.

We hold that the said executive order should not be enforced against the Pesigans on April 2,
1982 because, as already noted, it is a penal regulation published more than two months later in the
Official Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in
article 2 of the Civil Code and section 11 of the Revised Administrative Code.

The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which
prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations
and make the said penalties binding on the persons affected thereby. (People vs. Que Po Lay, 94
Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary of
Education, 110 Phil. 150.)

The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th
Ed., p. 146.)

Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank
Circular No. 20 and sentenced to six months' imprisonment and to pay a fine of P1,000,
was acquitted by this Court because the circular was published in the Official Gazette three months
after his conviction. He was not bound by the circular.

That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture
provision or sanction makes it a penal statute. Justice and fairness dictate that the public must be
informed of that provision by means of publication in the Gazette before violators of the executive
order can be bound thereby.

The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine
Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the respondents, do not involve
the enforcement of any penal regulation.

Commonwealth Act No. 638 requires that all Presidential executive orders having general
applicability should be published in the Official Gazette. It provides that "every order or document
which shag prescribe a penalty shall be deemed to have general applicability and legal effect."

Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the
Revised Administrative Code provides that even bureau "regulations and orders shall become
effective only when approved by the Department Head and published in the Official Gazette or
otherwise publicly promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.)

In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and
the head of the Public Affairs Office of the Ministry of Agriculture were unaware of Executive Order
No. 626-A. The Pesigans could not have been expected to be cognizant of such an executive order.
It results that they have a cause of action for the recovery of the carabaos. The summary
confiscation was not in order. The recipients of the carabaos should return them to the Pesigans.
However, they cannot transport the carabaos to Batangas because they are now bound by the said
executive order. Neither can they recover damages. Doctor Miranda and Zenarosa acted in good
faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos
are reversed and set aside. Respondents Miranda and Zenarosa are ordered to restore the
carabaos, with the requisite documents, to the petitioners, who as owners are entitled to possess the
same, with the right to dispose of them in Basud or Sipocot, Camarines Sur. No costs.

SO ORDERED. 1äwphï1.ñët

Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.

De Castro, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not
returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from
the twenty six farmers who used them. The farmers should not enrich themselves at the expense of
the Pesigans.

2. Tanada v. Tuviera, 136 SCRA 27 (1985)

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in
the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person

unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or particular interest to be subserved, or
some particular right to be protected, independent of that which he holds with the public at large," and "it
is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted need not show that he has any
legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.

Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
 is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the
subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But
whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and
make the said penalties binding on the persons affected thereby. " The cogency of this holding is
apparently recognized by respondent officials considering the manifestation in their comment that "the
government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication, even though some criminal laws
provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.
MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person should be bound by a law without
notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be
by publication in the Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the
level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation, 1 citing the settled principle based on
due process enunciated in earlier cases that "before the public is bound by its contents, especially its
penal provisions, a law, regulation or circular must first be published and the people officially and specially
informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official
Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's
indispensable and essential requirement of prior publication in the Official Gazette by the simple
expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the
completion of 15 days following its publication which is the period generally fixed by the Civil Code for its
proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite
for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

Footnotes

1 Section 6. The right of the people to information on matters of public concern shag
be recognized, access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shag be afforded the citizens subject to such
limitation as may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA
924; Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming
Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil.
179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et
al., 110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo S.
Pablo Jr. of the Government Printing Office, failed to respond to her letter-request
regarding the respective dates of publication in the Official Gazette of the presidential
issuances listed therein. No report has been submitted by the Clerk of Court as to the
publication or non-publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection

Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand
Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111
SCRA 433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice
Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

 Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published."
See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution
of Indiana, U.S.A.

3. In re: Kay Villegas Kami, Inc. 35 SCRA 429 (1970)

4. People v. Villaraza, 81 SCRA 95 (1978)

SECOND DIVISION

G.R. No. L-46228 January 17, 1978

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City), and CAESAR
PUERTO,respondents.

Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office of the City Fiscal of
Cagayan de Oro City for petitioner.

Eric Menchavez for respondent Caesar Puerto.

AQUINO, J.:

This case is about the jurisdiction of a city court in estafa cases.

On December 3, 1975 an assistant city fiscal charged Caesar Puerto with estafa in the city court of
Cagayan de Oro City for having issued on October 16, 1974 two bouncing checks for the total sum
of P4, 966. 63 (Criminal Case No. 32140).

City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the accused had waived the
second stage of the preliminary investigation. He directed that the case be elevated, for trial, to the
court of First Instance or the Circuit Criminal Court.

Upon petition of the prosecution, the Court of first Instance of Misamis Oriental, Cagayan de Oro
Branch VIII, in its order of February 3, 1977 returned the case to the city court because in its opinion
the case falls within the concurrent jurisdiction of the two courts and, the city court, as the first court
which took cognizance of the case, should try it.

Disagreeing with the Court of First Instance, respondent city judge in his order of April 21, 1977
directed the re-elevation of the case. His view is that the case falls within the exclusive original
jurisdiction of the Court of First Instance because estafa committed by the accused is punishable
by prision mayor medium under Presidential Decree No. 818 which took effect on October 22, 1975
and which amended article 315 of the Revised Penal Code.

That order of respondent judge is assailed in the petition for certiorari filed in this Court on May 27,
1977 by the office of the city fiscal of Cagayan de Oro City.

We hold that the case was properly filed with the city court which has original jurisdiction over it. The
estafa imputed to Caesar Puerto is punishable under article 315 of the Revised Penal Code
by arresto mayor maximum to prision correccional minimum or four months and one day to two
years and four months.

The penalty of prision mayor medium, or eight years and one day to ten years, imposed by
Presidential Decree No. 818, applies only to swindling by means of issuing bouncing checks which
was committed or after October 22, 1975.

That increased penalty does not apply to the estafa committed by Puerto on October 16, 1974. To
apply it to Puerto would make the decree an ex post facto law. Its retroactive application is prohibited
by articles 21 and 22 of the Revised Penal Code and section 12, Article IV of the Constitution.

The city court has original jurisdiction over the case because the penultimate paragraph or section
87 of the Judiciary Law, as amended by Republic Acts Nos. 2613 and 3828, provides that "judges of
city courts shall have like jurisdiction as the Court of First Instance to try parties charged with an
offense committed within their respective jurisdictions, in which the penalty provided by law does not
exceed prision correccional or imprisonment for not more than six years or fine not exceeding six
thousand pesos or both."

As section 87 itself shows, that jurisdiction is concurrent with the court of First Instance which is
empowered to try "all criminal cases in which the penalty provided by law is imprisonment for more
than six months, or a fine of more than two hundred pesos" (Sec. 44[f], Judiciary Law. See People
vs. Nazareno, L-40037, April 30, 1976, 70 SCRA 531).

It was not necessary for the city court to have conducted the preliminary investigation of the case.
The filing of the information by the fiscal presupposes that he had conducted the requisite
preliminary investigation pursuant to Rule 112 of the Rules of Court and Republic Act No. 5180, as
amended by Presidential Decree No. 77.

WHEREFORE, the order of the Court of First Instance, returning the case to the city court, is
affirmed and the two orders of the respondent city judge, elevating the case to the Court of First
Instance, are set aside. The city court is directed to try the case. No costs.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.

Santos, J., is on leave.

5. US v. Diaz-COnde, 42 Phil 766 (1922)

 EN BANC

G.R. No. L-18208 February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants.

Araneta & Zaragoza for appellants.

Attorney-General Villareal for appellee.

JOHNSON, J.:

It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court
of First Instance of the city of Manila, charging the defendants with a violation of the Usury Law (Act
No. 2655). Upon said complaint they were each arrested, arraigned, and pleaded not guilty. The
cause was finally brought on for trial on the 1st day of September, 1921. At the close of the trial, and
after a consideration of the evidence adduced, the Honorable M. V. del Rosario, judge, found that
the defendants were guilty of the crime charged in the complaint and sentenced each of them to pay
a fine of P120 and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the
provisions of the law. From that sentence each of the defendants appealed to this court.

The appellants now contend: (a) That the contract upon which the alleged usurious interest was
collected was executed before Act No. 2655 was adopted; (b) that at the time said contract was
made (December 30, 1915), there was no usury law in force in the Philippine Islands; (c) that said
Act No. 2655 did not become effective until the 1st day of May, 1916, or four months and a half after
the contract in question was executed; (d) that said law could have no retroactive effect or operation,
and (e) that said law impairs the obligation of a contract, and that for all of said reasons the judgment
imposed by the lower court should be revoked; that the complaint should be dismissed, and that they
should each be discharged from the custody of the law.

The essential facts constituting the basis of the criminal action are not in dispute, and may be stated
as follows: (1) That on the 30th day of December, 1915, the alleged offended persons Bartolome
Oliveros and Engracia Lianco executed and delivered to the defendants a contract (Exhibit B)
evidencing the fact that the former had borrowed from the latter the sum of P300, and (2) that, by
virtue of the terms of said contract, the said Bartolome Oliveros and Engracia Lianco obligated
themselves to pay to the defendants interest at the rate of five per cent (5%) per month, payable
within the first ten days of each and every month, the first payment to be made on the 10th day of
January, 1916. There were other terms in the contract which, however, are not important for the
decision in the present case.

The lower court, in the course of its opinion, stated that at the time of the execution and delivery of
said contract (Exhibit B), there was no law in force in the Philippine Islands punishing usury; but,
inasmuch as the defendants had collected a usurious rate of interest after the adoption of the Usury
Law in the Philippine Islands (Act No. 2655), they were guilty of a violation of that law and should be
punished in accordance with its provisions.

The law, we think, is well established that when a contract contains an obligation to pay interest
upon the principal, the interest thereby becomes part of the principal and is included within the
promise to pay. In other words, the obligation to pay interest on money due under a contract, be it
express or implied, is a part of the obligation of the contract. Laws adopted after the execution of a
contract, changing or altering the rate of interest, cannot be made to apply to such contract without
violating the provisions of the constitution which prohibit the adoption of a law "impairing the
obligation of contract." (8 Cyc., 996; 12 Corpus Juris, 1058-1059.)

The obligation of the contract is the law which binds the parties to perform their agreement if it is not
contrary to the law of the land, morals or public order. That law must govern and control the contract
in every aspect in which it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the intention of the parties,
necessarily impairs the contract itself. If a law impairs the obligation of a contract, it is prohibited by
the Jones Law, and is null and void. The laws in force in the Philippine Islands prior to any legislation
by the American sovereignty, prohibited the Legislature from giving to any penal law a retroactive
effect unless such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not
be construed as having a retroactive effect. It is an elementary rule of contract that the laws in force
at the time the contract was made must govern its interpretation and application. Laws must be
construed prospectively and not retrospectively. If a contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation. If that were permitted then the obligations of a
contract might be impaired, which is prohibited by the organic law of the Philippine Islands. (U.S. vs.
Constantino Tan Quingco Chua, 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40 Phil., 570.)

Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction.
Every law that makes an action, done before the passage of the law, and which was innocent when
done, criminal, and punishes such action, is an ex post facto law. In the present case Act No. 2655
made an act which had been done before the law was adopted, a criminal act, and to make said Act
applicable to the act complained of would be to give it an ex post facto operation. The Legislature is
prohibited from adopting a law which will make an act done before its adoption a crime. A law may
be given a retroactive effect in civil action, providing it is curative in character, but ex post facto laws
are absolutely prohibited unless its retroactive effect is favorable to the defendant.

For the reason, therefore, that the acts complained of in the present case were legal at the time of
their occurrence, they cannot be made criminal by any subsequent or ex post facto legislation. What
the courts may say, considering the provisions of article 1255 of the Civil Code, when a civil action is
brought upon said contract, cannot now be determined. A contract may be annulled by the courts
when it is shown that it is against morals or public order.

For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by
the defendants did not constitute a crime at the time they were committed, and therefore the
sentence of the lower court should be, and is hereby, revoked; and it is hereby ordered and decreed
that the complaint be dismissed, and that the defendants be discharged from the custody of the law,
with costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, Johns and Romualdez, JJ., concur.

6. People v. Ferrer, 48 SCRA 382 (1972)

EN BANC
G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba,"respondents.

Solicitor R. Mutuc for respondent Feliciano Co.

Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p

I. Statement of the Case

Posed in issue in these two cases is the constitutionality of the Anti-Subversion

Act, 1 which outlaws the Communist Party of the Philippines andother "subversive associations," and
punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or
remains a member" of the Party or of any other similar "subversive" organization.

On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and, finding a prima facie case against
Co, directed the Government prosecutors to file the corresponding information. The twice-amended
information, docketed as Criminal Case No. 27, recites:

That on or about May 1969 to December 5, 1969, in the Municipality of Capas,

Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal organization aimed to
overthrow the Government of the Philippines by means of force, violence, deceit,
subversion, or any other illegal means for the purpose of establishing in the
Philippines a totalitarian regime and placing the government under the control and
domination of an alien power, by being an instructor in the Mao Tse Tung University,
the training school of recruits of the New People's Army, the military arm of the said
Communist Party of the Philippines.

That in the commission of the above offense, the following aggravating

circumstances are present, to wit:

(a) That the crime has been committed in contempt of or with insult to public
authorities;

(b) That the crime was committed by a band; and afford impunity.

(c) With the aid of armed men or persons who insure or afford impunity.

Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:

The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated
by the Secretary of Justice to collaborate with the Provincial Fiscal of Tarlac,
pursuant to the Order dated June 5, above entitled case, hereby accuse Nilo S.
Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER
MELODY and several JOHN DOES, whose identities are still unknown, for violation
of REPUBLIC ACT No. 1700, otherwise known as the Anti-Subversion Law,
committed as follows:

That in or about March 1969 and for sometime prior thereto and thereafter, in the
Province of Tarlac, within the jurisdiction of this Honorable Court, and elsewhere in
the Philippines, the above-named accused knowingly, willfully and by overt acts
organized, joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act
No. 1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto,
knowingly, willfully and by over acts joined and/or remained as a member and
became an officer and/or ranking leader not only of the Communist Party of the
Philippines but also of the New People's Army, the military arm of the Communist
Party of the Philippines; and that all the above-named accused, as such officers
and/or ranking leaders of the aforestated subversive organizations, conspiring,
confederating and mutually helping one another, did then and there knowingly,
willfully and feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and tumultuously and take
up arms against the government, and/or engage in rebellious conspiracies and riots
to overthrow the government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the following:

1. On several occasions within the province of Tarlac, the accused conducted

meetings and/or seminars wherein the said accused delivered speeches instigating
and inciting the people to unite, rise in arms and overthrow the Government of the
Republic of the Philippines, by force, violence, deceit, subversion and/or other illegal
means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution, subversive and/or
seditious propaganda, conspiracies, and/or riots and/or other illegal means to
discredit and overthrow the Government of the Republic of the Philippines and to
established in the Philippines a Communist regime.

2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with
FRANCISCO PORTEM alias KIKO Gonzales and others, pursued the above
subversive and/or seditious activities in San Pablo City by recruiting members for the
New People's Army, and/or by instigating and inciting the people to organize and
unite for the purpose of overthrowing the Government of the Republic of the
Philippines through armed revolution, deceit, subversion and/or other illegal means,
and establishing in the Philippines a Communist Government.
 That the following aggravating circumstances attended the commission of the
offense: (a) aid of armed men or persons to insure or afford impunity; and (b) craft,
fraud, or disguise was employed.

On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that
(1) it is a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.

Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two accused. The Government appealed. We
resolved to treat its appeal as a special civil action for certiorari.

II. Is the Act a Bill of Attainder?

Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall
be enacted." 2A bill of attainder is a legislative act which inflicts punishment without trial. 3 Its essence is
the substitution of a legislative for a judicial determination of guilt. 4 The constitutional ban against bills of
attainder serves to implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function. 7 History in perspective,
bills of attainder were employed to suppress unpopular causes and political minorities, 8 and it is against
this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of
a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of attainder. 9

In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security
of the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the
forms or safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and voluntary member, the law is still a bill of
attainder because it has expressly created a presumption of organizational guilt which the accused
can never hope to overthrow."

1. When the Act is viewed in its actual operation, it will be seen that it does not specify the
Communist Party of the Philippines or the members thereof for the purpose of punishment. What it
does is simply to declare the Party to be an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the Philippines" issued solely for definitional
purposes. In fact the Act applies not only to the Communist Party of the Philippines but also to "any
other organization having the same purpose and their successors." Its focus is not on individuals but
on conduct. 10

This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management
Reporting and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and
therefore unconstitutional. Section 504 provided in its pertinent parts as follows:

(a) No person who is or has been a member of the Communist

Party ... shall serve —

(1) as an officer, director, trustee, member of any executive board or similar

governing body, business agent, manager, organizer, or other employee (other than
 as an employee performing exclusively clerical or custodial duties) of any labor
organization.

during or for five years after the termination of his membership in the Communist
Party....

(b) Any person who willfully violates this section shall be fined not more than $10,000
or imprisoned for not more than one year, or both.

This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the Supreme Court of the United
States pointed out:

Under the line of cases just outlined, sec. 504 of the Labor Management Reporting
and Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under the Commerce Clause to enact legislation designed to keep
from positions affecting interstate commerce persons who may use of such positions
to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally
applicable rule decreeing that any person who commits certain acts or possesses
certain characteristics (acts and characteristics which, in Congress' view, make them
likely to initiate political strikes) shall not hold union office, and leaves to courts and
juries the job of deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in no uncertain terms
the persons who possess the feared characteristics and therefore cannot hold union
office without incurring criminal liability — members of the Communist Party.

Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81

S CT 1357, lend a support to our conclusion. That case involved an appeal from an
order by the Control Board ordering the Communist Party to register as a
"Communist-action organization," under the Subversive Activities Control Act of
1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-
action organization" which the Board is to apply is set forth in sec. 3 of the Act:

[A]ny organization in the United States ... which (i)is substantially directed,
dominated, or controlled by the foreign government or foreign organization controlling
the world Communist movement referred to in section 2 of this title, and(ii) operates
primarily to advance the objectives of such world Communist movement... 64 Stat
989, 50 USC sec. 782 (1958 ed.)

A majority of the Court rejected the argument that the Act was a bill of attainder,
reasoning that sec. 3 does not specify the persons or groups upon which the
deprivations setforth in the Act are to be imposed, but instead sets forth a general
definition. Although the Board has determined in 1953 that the Communist Party was
a "Communist-action organization," the Court found the statutory definition not to be
so narrow as to insure that the Party would always come within it:

In this proceeding the Board had found, and the Court of Appeals has sustained its
conclusion, that the Communist Party, by virtud of the activities in which it now
engages, comes within the terms of the Act. If the Party should at anytime choose to
 abandon these activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)

Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially established. The Government has yet to
prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that
they joined the Party, knowing its subversive character and with specific intent to further its basic
objective, i.e., to overthrow the existing Government by force deceit, and other illegal means and
place the country under the control and domination of a foreign power.

As to the claim that under the statute organizationl guilt is nonetheless imputed despite the
requirement of proof of knowing membership in the Party, suffice it to say that is precisely the nature
of conspiracy, which has been referred to as a "dragneet device" whereby all who participate in the
criminal covenant are liable. The contention would be correct if the statute were construed as
punishing mere membership devoid of any specific intent to further the unlawful goals of the
Party. 13 But the statute specifically required that membership must be knowing or active, with specific
intent to further the illegal objectives of the Party. That is what section 4 means when it requires that
membership, to be unlawful, must be shown to have been acquired "knowingly, willfully and by overt
acts." 14 The ingredient of specific intent to pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from the ingredient of guilty knowledge. The
former requires proof of direct participation in the organization's unlawful activities, while the latter
requires proof of mere adherence to the organization's illegal objectives.

2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute prohibiting partners or employees of securities
underwriting firms from serving as officers or employees of national banks on the basis of a
legislative finding that the persons mentioned would be subject to the temptation to commit acts
deemed inimical to the national economy, has been declared not to be a bill of attainder. 16 Similarly,
a statute requiring every secret, oath-bound society having a membership of at least twenty to register,
and punishing any person who becomes a member of such society which fails to register or remains a
member thereof, was declared valid even if in its operation it was shown to apply only to the members of
the Ku Klux Klan. 17

In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to
file with the Department of Labor affidavits of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization which teaches the overthrow of the
Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a judicial trial does it
become a bill of attainder. 20 It is upon this ground that statutes which disqualified those who had taken
part in the rebellion against the Government of the United States during the Civil War from holding
office, 21 or from exercising their profession, 22 or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or
which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor
union, 24 have been invalidated as bills of attainder.

But when the judgment expressed in legislation is so universally acknowledged to be certain as to be

"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed
fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any person
who joined or remained a member of such a society failing to register. While the statute did not specify
the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against
the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United States Supreme Court
relied on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:

The courts below recognized the principle shown in the cases just cited and reached
the conclusion that the classification was justified by a difference between the two
classes of associations shown by experience, and that the difference consisted (a) in
a manifest tendency on the part of one class to make the secrecy surrounding its
purpose and membership a cloak for acts and conduct inimical to personal rights and
public welfare, and (b) in the absence of such a tendency on the part of the other
class. In pointing out this difference one of the courts said of the Ku Klux Klan, the
principal association in the included class: "It is a matter of common knowledge that
this organization functions largely at night, its members disguised by hoods and
gowns and doing things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their purposes are well known,
many of them having been in existence for many years. Many of them are oath-
bound and secret. But we hear no complaint against them regarding violation of the
peace or interfering with the rights of others." Another of the courts said: "It is a
matter of common knowledge that the association or organization of which the relator
is concededly a member exercises activities tending to the prejudice and intimidation
of sundry classes of our citizens. But the legislation is not confined to this society;"
and later said of the other class: "Labor unions have a recognized lawful purpose.
The benevolent orders mentioned in the Benevolent Orders Law have already
received legislative scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful agencies." The third
court, after recognizing "the potentialities of evil in secret societies," and observing
that "the danger of certain organizations has been judicially demonstrated," —
meaning in that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune from hostile criticism,
have on the whole justified their existence."

We assume that the legislature had before it such information as was readily
available including the published report of a hearing, before a committee of the
House of Representatives of the 57th Congress relating to the formation, purposes
and activities of the Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other
periods; that its memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the widest freedom for
all and full adherence to the Constitution of the United States; in another exacted of
its member an oath to shield and preserve "white supremacy;" and in still another
declared any person actively opposing its principles to be "a dangerous ingredient in
the body politic of our country and an enemy to the weal of our national
commonwealth;" that it was conducting a crusade against Catholics, Jews, and
Negroes, and stimulating hurtful religious and race prejudices; that it was striving for
political power and assuming a sort of guardianship over the administration of local,
state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes.27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by
this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In
1969 we again found that the objective of the Party was the "overthrow of the Philippine Government by
armed struggle and to establish in the Philippines a communist form of government similar to that of
Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the
Communist Party of the Philippines and the organization of Communist fronts among youth organizations
such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of
a sizeable group of men who have publicly risen in arms to overthrow the government and have thus
been and still are engaged in rebellion against the Government of the Philippines.

3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit
of the prohibition against bills of attainder. It is also necessary that it must apply retroactively and
reach past conduct. This requirement follows from the nature of a bill of attainder as a legislative
adjudication of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly
objectionable because of its ex post factofeatures. This is the historic explanation for uniting the two
mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill
of attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of attainder." 31

Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter
of the City of Los Angeles which provided:

... [N]o person shall hold or retain or be eligible for any public office or employment in
the service of the City of Los Angeles, in any office or department thereof, either
elective or appointive, who has within five (5) years prior to the effective date of this
section advised, advocated, or taught, or who may, after this section becomes
effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period
of five (5) years advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of California.

In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:

... Immaterial here is any opinion we might have as to the charter provision insofar as
it purported to apply restrospectively for a five-year period to its effective date. We
assume that under the Federal Constitution the Charter Amendment is valid to the
extent that it bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow of the
Government or who are or become affiliated with any group doing so. The provisions
operating thus prospectively were a reasonable regulation to protect the municipal
service by establishing an employment qualification of loyalty to the State and the
United States.

... Unlike the provisions of the charter and ordinance under which petitioners were
removed, the statute in the Lovett case did not declare general and prospectively
operative standards of qualification and eligibility for public employment. Rather, by
its terms it prohibited any further payment of compensationto named individuals or
employees. Under these circumstances, viewed against the legislative background,
the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy,
them it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct
and that the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect
to the U.S. Federal Subversive Activities ControlAct of 1950:

Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct
which it regulates is describedwith such particularity that, in probability, few
organizationswill come within the statutory terms. Legislatures may act tocurb
behaviour which they regard as harmful to the public welfare,whether that conduct is
found to be engaged in by manypersons or by one. So long as the incidence of
legislation issuch that the persons who engage in the regulated conduct, bethey
many or few, can escape regulation merely by altering thecourse of their own present
activities, there can be no complaintof an attainder. 33

This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein applies only to acts committed"After the approval of this
Act." Only those who "knowingly,willfully and by overt acts affiliate themselves with,become or
remain members of the Communist Party of thePhilippines and/or its successors or of any
subversive association"after June 20, 1957, are punished. Those whowere members of the Party or
of any other subversive associationat the time of the enactment of the law, weregiven the
opportunity of purging themselves of liability byrenouncing in writing and under oath their
membershipin the Party. The law expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by the Act are thereforenot inescapable.

III. The Act and the Requirements of Due Process

1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of expression and freedom of association are
sofundamental that they are thought by some to occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any limitation on their exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before enacting the statute in question Congressconducted careful
investigations and then stated itsfindings in the preamble, thus:

... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in

fact an organized conspiracyto overthrow the Government of the Republic of the
Philippinesnot only by force and violence but also by deceit, subversionand other
illegal means, for the purpose of establishing in thePhilippines a totalitarian regime
subject to alien dominationand control;

... [T]he continued existence and activities of the CommunistParty of the Philippines
constitutes a clear, present andgrave danger to the security of the Philippines;

... [I]n the face of the organized, systematice and persistentsubversion, national in
scope but international in direction,posed by the Communist Party of the Philippines
and its activities,there is urgent need for special legislation to cope withthis
continuing menace to the freedom and security of the country.

In truth, the constitutionality of the Act would be opento question if, instead of making these findings
in enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:

... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol
would raise a question of legislativefact, i.e., whether this standard has a reasonable
relationto public health, morals, and the enforcement problem. Alaw forbidding the
sale of intoxicating beverages (assuming itis not so vague as to require
supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the
limits on governmental action imposed by the Constitution. Of course what we mean
by fact in each case is itselfan ultimate conclusion founded on underlying facts and
oncriteria of judgment for weighing them.

A conventional formulation is that legislative facts — those facts which are relevant to
the legislative judgment — will not be canvassed save to determine whether there is
a rationalbasis for believing that they exist, while adjudicativefacts — those which tie
the legislative enactment to the litigant — are to be demonstrated and found
according to the ordinarystandards prevailing for judicial trials. 36

The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that
'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary
nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect
renders a court functus officio." The recital of legislative findings implements this test.

With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action organizations" are controlledby the foreign government
controlling the worldCommunist movement and that they operate primarily to"advance the objectives
of such world Communist movement"),the U.S. Supreme Court said:

It is not for the courts to reexamine the validity of theselegislative findings and reject
them....They are the productof extensive investigation by Committes of Congress
over morethan a decade and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530.
We certainly cannot dismiss them as unfoundedirrational imaginings. ... And if we
accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the
United States, but to the United States as asovereign, independent Nation. ...we
must recognize that thepower of Congress to regulate Communist organizations of
thisnature is
extensive. 39

This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-
Subversion Act.

That the Government has a right to protect itself againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes
every other value, "forif a society cannot protect its very structure from armedinternal attack, ...no
subordinate value can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United
States: 41

Whatever theoretical merit there may be to the argumentthat there is a 'right' to

rebellion against dictatorial governmentsis without force where the existing structure
 of government provides for peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution, which principle,
carried to its logical conclusion,must lead to anarchy. No one could conceive that it
isnot within the power of Congress to prohibit acts intended tooverthrow the
government by force and violence.

2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be
legitimate and substantial,that purpose cannot be pursued by means that broadly stiflefundamental
personal liberties when the end can be more narrowly achieved." 42 The requirement
of knowing membership,as distinguished from nominalmembership, hasbeen held as a sufficient basis for
penalizing membershipin a subversive organization. 43 For, as has been stated:

Membership in an organization renders aid and encouragement to the organization;

and when membership is acceptedor retained with knowledge that the organization is
engaged inan unlawful purpose, the one accepting or retaining membershipwith such
knowledge makes himself a party to the unlawfulenterprise in which it is engaged. 44

3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives
the function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the penalties prescribed for the different acts
prescribedare stated in section 4 which requires that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired "knowingly, willfully and by overt acts." Indeed, the first
"whereas" clause makes clear thatthe overthrow contemplated is "overthrow not only by forceand
violence but also be deceit, subversion and other illegalmeans." The absence of this qualificatio in
section 2 appearsto be due more to an oversight rather than to deliberateomission.

Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only
in a metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law
does not speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow"
in a metaphorical sense is hardlyconsistent with the clearly delineated objective of the
"overthrow,"namely, "establishing in the Philippines a totalitarianregime and place [sic] the
Government under thecontrol and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the appellant clearly imported
anoverthrow of the Government by violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The word 'overthrow'could not have been
intended as referring to an ordinarychange by the exercise of the elective franchise. The useof the
whip [which the accused exhorted his audience to useagainst the Constabulary], an instrument
designed toleave marks on the sides of adversaries, is inconsistentwith the mild interpretation which
the appellant wouldhave us impute to the language."45

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is
so indirect and so insubstantial as to beclearly and heavily outweighed by the overriding
considerationsof national security and the preservartion of democraticinstitutions in his country.

The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:
 Whoever organizes or helps or attempts to organize anysociety, group, or assembly
of persons who teach, advocate, orencourage the overthrow or destruction of any
such governmentby force or violence; or becomes or is a member of, or affiliatedwith,
any such society, group or assembly of persons, knowingthe purpose thereof —

Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or
both, and shall be ineligible for emplymentby the United States or any department or
agencythereof, for the five years next following his conviction.... 46

In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47

It was settled in Dennis that advocacy with which we arehere concerned is not
constitutionally protected speech, and itwas further established that a combination to
promote suchadvocacy, albeit under the aegis of what purports to be a politicalparty,
is not such association as is protected by the firstAmendment. We can discern no
reason why membership, whenit constitutes a purposeful form of complicity in a
group engagingin this same forbidden advocacy, should receive anygreater degree
of protection from the guarantees of that Amendment.

Moreover, as was held in another case, where the problemsof accommodating the exigencies of
self-preservationand the values of liberty are as complex and intricate as inthe situation described in
the legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the
legislative judgment as to how that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the judgment of judgeswould, in the first
instance, have chosen other methods. 48 For in truth, legislation, "whether it restrains freedom tohire or
freedom to speak, is itself an effort at compromisebetween the claims of the social order and individual
freedom,and when the legislative compromise in either case isbrought to the judicial test the court stands
one step removedfrom the conflict and its resolution through law." 49

V. The Act and its Title

The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into
law shall embrace more than one subject which shall be expressed in the title of the bill." 50

What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:

And provided, finally, That one who conspires with anyother person to overthrow the
Government of the Republic ofthe Philippines, or the government of any of its
political subdivisionsby force, violence, deceit, subversion or illegal means,for the
purpose of placing such Government or political subdivisionunder the control and
domination of any lien power, shallbe punished by prision correccional to prision
mayor with allthe accessory penalties provided therefor in the same code.

It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of
the Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the
national or any local governmentby illegal means, even if their intent is not to establisha totalitarian
regime, burt a democratic regime, evenif their purpose is not to place the nation under an
aliencommunist power, but under an alien democratic power likethe United States or England or
Malaysia or even an anti-communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title.
Section 1 providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the
substitutionof a foreign totalitarian regime in place of theexisting Government and not merely
subversion by Communistconspiracies..

The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of
the Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of
the proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute
will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-
Subversion Act fully satisfies these requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize

the needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive
area of freedom of expressionand belief. Accordingly, we set the following basic guidelines to be
observed in any prosecution under the Act.The Government, in addition to proving such
circumstancesas may affect liability, must establish the following elementsof the crime of joining the
Communist Party of the Philippinesor any other subversive association:

(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and

(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of
the Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign
power; (b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert
acts.

We refrain from making any pronouncement as to thecrime or remaining a member of the

Communist Party ofthe Philippines or of any other subversive association: weleave this matter to
future determination.

ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases
are herebyremanded to the court a quo for trial on the merits. Costs de oficio.

Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.

Concepcion, C.J., concurs in the result.

Makasiar and Antonio, JJ., took no part.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly
opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional
issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure
in the trial of those prosecuted under suchAct respect for their constitutional rights is to be
commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder
clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of
freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which
they may be exposed, compels a differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to
named individuals or easilyascertainable members of a group in such a way as to inflicton them
punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire"
for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they
swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were
criminally liable. The United States Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any
right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was
unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of
pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and
penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the
powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces
upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of
the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of
punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d
article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings
was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having
entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and,
therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany
institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within
themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared
that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty
of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And
further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less
within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment
creating the deprivation, without any of theordinary forms and guards provided for the security ofthe
citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also
decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of
such Court, all that was necessarywas that the applicant have three years practice in the statecourts to
which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an
oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for
admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could
not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on
July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending
that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was
pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were
not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that
before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage
of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to
consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there
said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and
the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in
1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for
several yearsworking for the government. The government agencies,which had lawfully employed them,
were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over
their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way
of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter appropriated except for services as
jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to
jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional
enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the
respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas
discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto
which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether
theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so,
whether Section304 is a bill of attainder insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist
Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union.
Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist,
for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On
May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California
withservicing as a member of an executive board of a labororganization while a member of the
Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of
attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of
Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of
attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary
problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in
theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the
architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a
narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate
commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however,
Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain acts or possesses certain
characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political
strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no
uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office
without incurring criminal liability — members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive
ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained,
the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to
the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would
have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to
described activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or
described in terms of conduct which,because it is past conduct, operates only as a designationof
particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the
registrationonly of organizations which, after the date of the Act,are found to be under the direction,
domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This
finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.

3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat
that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe
then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied
notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out
national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be
repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension
justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at
the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without
holding the right to theexpression of heresy at any time and place to be absolute — for even the right to
non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so
for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for
me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world —
ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the use of force by
Government to make allthe beliefs and opinions of the people fit into a commonmold on any single
subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness. The creation of
publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of
our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies,
played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation
of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act
aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a
foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government.
The Communist Party hasnever been more than a small group in this country. Andits numbers had been
dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was
because a vast majority of the Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to
follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut
withheld any power to punish people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Separate Opinions

FERNANDO, J., dissenting:

It is with regard that I find myself unable to join therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion Act. 1 It is to be admittedthat the learned and scholarly
opinbion of Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional
issues raised. What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure
in the trial of those prosecuted under suchAct respect for their constitutional rights is to be
commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder
clause 2 coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of
freedom of belief and expression 3 as well as freedom of association 4 as to impermissible inroadsto which
they may be exposed, compels a differentconclusion. Hence this dissent.

1. There is to be sure no thought on my part that theequally pressing concern of state safety and
security shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a
justifiable indictment fornegligence had they been remiss in their obligation tosafeguard the nation
against its sworn enemies. In a simplerera, where the overthrow of the government wasusually
through the rising up in arms, with weapons farless sophisticated than those now in existence, there
wasno constitutional issue of the magnitude that now confrontsus. Force has to be met with force. It
was as clearcutas that. Advances in science as well as more subtlemethods of inducing disloyalty
and weakening the senseof allegiance have introduced complexities in coping withsuch problems.
There must be then, and I am the firstto recognize it, a greater understanding for the
governmentalresponde to situations of that character. It is inthat light that the validity of the Anti-
Subversion Act isto be appraised. From ny standpoint, and I am not presumptuousenough to claim
that it is the only perspectiveor that is the most realistic, I feel that there was an
insufficientappreciation of the compulsion of the constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to legitilate state effortsto stem the tide of subversive
activities, in whateverform manifested.

2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934
as Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof
attainder is a legislative act which inflicts punishment without judicial trial. (Cummings v. United
States, 4Wall. 277, 18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which
a man was tried, convictedand sentenced to death without a jury, without ahearing in court, without
hearing the witnesses againsthim and without regard to the rules of evidence. His bloodwas
attainted or corrupted, rendering him devoid of allheritable quality — of acquiring and disposing
property bydescent. (Ex parte Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less
than death, the act wasknown as a 'bill of pains and penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of Stuartoppression. Once, the name of Thomas Jefferson was
includedin a bill of attainder presented to Parliament becauseof his reform activities." 5 Two American
SupremeCourt decision were thus in the minds of the framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally. Legislative acts, no matter whattheir form, that apply either to
named individuals or easilyascertainable members of a group in such a way as to inflicton them
punishment amounting to a deprivation ofany right, civil or political, without judicial trial are billsof
attainder prohibited by the Constitution. 8

Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty
oath requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors,
ministers, and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire"
for the success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they
swore falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were
criminally liable. The United States Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any
right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was
unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of
pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and
penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the
powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces
upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of
the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree of
punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the 2d
article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr. Cummings
was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of having
entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates, and,
therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach inany
institution of learning, there could be no question thatthe clauses would constitute a bill of attainder within
themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name, had declared
that all priestsand clergymen within the state of Missouri were guiltyof these acts, or should be held guilty
of them, and hencebe subjected to the like deprivation, the clause would beequally open to objection. And
further, it these clauseshad declared that all such priests and clergymen shouldbe so held guilty, and be
thus deprived, provided they didnot, by a day designated, do certain specified acts, theywould be no less
within the inhibition of the Federal Constitution.In all these cases there would be the legislativeenactment
creating the deprivation, without any of theordinary forms and guards provided for the security ofthe
citizen in the administration of justice by the establishedtribunales." 10

On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also
decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of
such Court, all that was necessarywas that the applicant have three years practice in the statecourts to
which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an
oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for
admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could
not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on
July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending
that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was
pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were
not punishableat the time they were committedl; and for other of the actsit adds a new punishment to that
before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the passage
of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion to
consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there
said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and
the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12

There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in
1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for
several yearsworking for the government. The government agencies,which had lawfully employed them,
were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over
their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way
of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter appropriated except for services as
jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to
jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional
enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the
respondents at work on their jobs forvarying periods after November 15, 1943, but their compensationwas
discontinued after that date. Respondentsbrought this action in the Court of Claims for the salariesto
which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus confined to whether
theaction in the light of proper construction of the Act presenteda justificiable controversy, and, if so,
whether Section304 is a bill of attainder insofar as the respondents wereconcerned.

After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post
Law shall be passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a
legislative act which inflicts punishmentwithout a judicial trial. If the punishment be lessthan death,
the act is termed a bill of pains and penalties.Within the meaning of the Constitution, bills of
attainderinclude bills of pains and penalties.' ... On the sameday the Cummings case was decided,
the Court, in Exparte Garland, also held invalid on the same grounds anAct of Congress which
required attorneys practicing beforethis Court to take a similar oath. Neither of thesecases has ever
been overruled. They stand for the propositionthat legislative acts, no matter what their form,that
apply either to named individuals or to easily ascertainablemembers of a group in such a way as to
inflictpunishment on them without a judicial trial are billsof attainder prohibited by the Constitution.
Adherenceto this principle requires invalidation of Section 304. Wedo adhere to it." 14

United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist
Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union.
Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist,
for more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On
May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California
withservicing as a member of an executive board of a labororganization while a member of the
Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of
attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of
Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills of
attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance tocontemporary
problems, must ultimately be sought by attemptingto discern the reasons for its inclusion in
theConstitution, and the evils it was desinged to eliminate.The best available evidence, the writings of the
architectsof our constitutional system, indicates that the Bill ofAttainder Clause was inteded not as a
narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard against legislative exercise of the judicialfunction, or more
simply — trial by legislature." 16 Then after referring to Cummings, Garland, and Lovett,Chief Justice
Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor Management
Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly possesses
power under theCommerce Clause to enact legislation designed to keepfrom positions affecting interstate
commerce persons whomay use such positions to bring about political strikes. In Sec. 504, however,
Congress has exceeded the authoritygranted it by the Constitution. The statute does not setforth a
generally applicable rule decreeing that any personwho commits certain acts or possesses certain
characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate political
strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons have
committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no
uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office
without incurring criminal liability — members of the Communist Party." 17

Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive
ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was sustained,
the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate adherence to
the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome certainly would
have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified organizations but to
described activities inwhich an organization may or may not engage. The singlingout of an individual for
legislatively prescribed punishmentconstitutes an attainder whether the individualis called by name or
described in terms of conduct which,because it is past conduct, operates only as a designationof
particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the
registrationonly of organizations which, after the date of the Act,are found to be under the direction,
domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives. This
finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the record for
the reviewing court'sdetermination whether the administrative findings as tofact are supported by the
preponderance of the evidence.Present activity constitutes an operative element to whichthe statute
attaches legal consequences, not merely a pointof reference for the ascertainment of particularly
personsineluctably designated by the legislature." 19

The teaching of the above cases, which I find highlypersuasive considering what appeared to be in
the mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the
Anti-SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three
subsequent cases upholding theCummings and Garland doctrine were likewise cited in theopinion of
the Court. The interpretation accorded to themby my brethren is, of course, different but I am unable
togo along with them especially in the light of the categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them could deprive such aholding of its explicit character
as shown by this excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of
attainder it would be totally unnecessaryto charge communists in court, as the law alone,without
more, would suffice to secure their conviction andpunishment. But the fact is that their guilt still has
to bejudicially estblished. The Government has yet to proveat the trial that the accused joined the
Party knowingly,willfully and by overt acts, and that they joined the Partyknowing its subversive
character and with specific intentto further its objective, i.e., to overthrow the existing Governmentby
force, deceit, and other illegal means and placeit under the control and domination of a foreign
power. 20While not implausible, I find difficulty in yielding acceptance.In Cummings, there was a
criminal prosecution ofthe Catholic priest who refused to take the loyalty oath.Again in Brown, there
was an indictment of the laborleader who, judging by his membership in the CommunistParty, did
transgress the statutory provision subsequentlyfound offensive to the bill attainder clause. If the
constructionI would place on theoff-repeated pronouncementof the American Supreme Court is
correct, then the merefact that a criminal case would have to be instituted wouldnot save the statute.
It does seem clear to me that fromthe very title of the Anti-Subversion Act, "to outlaw the Communist
Party of the Philippines and similar associations,"not to mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat
that Communism, the Russian brand then, didpose was a painful reality for Congressional leaders andthe
then President. Its shadow fell squarely across thelives of all. Subversion then could neither be denied
notdisparaged. There was, in the expert opinion of those conversantwith such mattes, a danger to out
national existenceof no mean character. Nonetheless, the remedies toward off such menace must not be
repugnant to our Constitution.We are legally precluded from acting in anyother way. The apprehension
justly felt is no warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at
the expense of constitutional ideals.

One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not
only can but must.Such dissent can take the form of the most critical andthe most disparaging
remarks. They may give offense tothose in authority, to those who wield powe and
influence.Nevertheless, they are entitled to constitutional protection.Insofar as the content of such
dissent is concerned, thelimits are hardly discernible. It cannot be confined totrivial matters or to
such as are devoid of too much significance.It can reach the heart of things. Such dissentmay, for
those not so adventurous in the realm of ideas,possess a subversive tinge. Even those who oppose
a democraticform of government cannot be silenced. This is trueespecially in centers of learning
where scholars competentin their line may, as a result of their studies, assert thata future is bleak for
the system of government now favoredby Western democracies. There may be doubts
entertainedby some as to the lawfulness of their exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen may do so without fear thatthereby he incurs the risk
of a penal sanction. That ismerely to affirm the truth of this ringing declaration fromJefferson: "If
there be any among us who would wish todissolve this union or to change its republican form,
letthem stand undisturbed as monuments of the safety withwhich error of opinion may be tolerated
where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney Hook: "Without
holding the right to theexpression of heresy at any time and place to be absolute — for even the right to
non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies, and
deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23

The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the
Constitution. It does not bar the expressionof views affecting the very life of the state, even
ifopposed to its fundamental presuppositions. It allows, ifit does not require as a matter of fact, that
unorthodoxideas be freely ventilated and fully heard. Dissent is notdisloyalty.

Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly
stifle fundamental personalliberties when the end can be more narrowly achieved.For precision of
regulation is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so
for "a governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided. If
such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That for
me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.

There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious Communist problem was found inthe opinion of this
noted jurist offensive to the FirstAmendment of the American Constitution safeguardingfree speech.
Thus: "If there is one thing certain aboutthe First Amendment it is that this Amendment was
designedto guarantee the freest interchange of ideas aboutall public matters and that, of course,
means the interchangeof all ideas, however such ideas may be viewed inother countries and
whatever change in the existing structureof government it may be hoped that these ideas willbring
about. Now, when this country is trying to spreadthe high ideals of democracy all over the world —
ideals that are revolutionary in many countries — seems to be aparticularly inappropriate time to
stifle First Amendmentfreedoms in this country. The same arguments that areused to justify the
outlawry of Communist ideas here couldbe used to justify an outlawry of the ideas of democracyin
other countries." 26 Further he stated: "I believe with theFramers of the First Amendment that the internal
securityof a nation like ours does not and cannot be made todepend upon the use of force by
Government to make allthe beliefs and opinions of the people fit into a commonmold on any single
subject. Such enforced conformity ofthought would tend only to deprive our people of the boldspirit of
adventure and progress which has brought thisNation to its present greatness. The creation of
publicopinion by groups, organizations, societies, clubs, and partieshas been and is a necessary part of
our democraticsociety. Such groups, like the Sons of Liberty and theAmerican Corresponding Societies,
played a large part increating sentiment in this country that led the people ofthe Colonies to want a nation
of their own. The Father ofthe Constitution — James Madison — said, in speakingof the Sedition Act
aimed at crushing the Jefferson Party,that had that law been in effect during the period beforethe
Revolution, the United States might well have continuedto be 'miserable colonies, groaning under a
foreign yoke.'In my judgment, this country's internal security can betterbe served by depending upon the
affection of the peoplethan by attempting to instill them with fear and dreadof the power of Government.
The Communist Party hasnever been more than a small group in this country. Andits numbers had been
dwindling even before the Governmentbegan its campaign to destroy the Party by force oflaw. This was
because a vast majority of the Americanpeople were against the Party's policies and
overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to
follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid lawsbut
withheld any power to punish people for nothing morethan advocacy of their views." 27

With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully
meeting the test of validity onfree speech and freedom of association grounds.

4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of
the challengedstatute which for me is susceptible of an interpretationthat it does represent a
defeatist attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic
state. That certainly could not havebeen the thought of its framers; nonetheless, such an
assumptionis not devoid of plausibility for why resort tothis extreme measure susceptible as it is to
what apparentlyare not unfounded attacks on constitutional grounds?Is this not to ignore what
previously was accepted as anobvious truth, namely that the light of liberalism sendsits shafts in
many directions? It can illuminate, and itcan win the hearts and minds of men. It if difficult forme to
accept the view then that a resort to outlawry isindispensable, that suppression is the only answer to
whatis an admitted evil. There could have been a greater exposureof the undesirability of the
communist creed, itscontradictions and arbitrarines, its lack of fealty to reason,its inculcation of
disloyalty, and its subservience tocentralized dictation that brooks no opposition. It is thus,in a
realistic sense, a manifestation of the fear of freethought and the will to suppress it. For better, of
course,is the propaganda of the deed. What the communists promise,this government can fulfill. It is
up to it then to takeremedial measures to alleviate the condition of our countrymenwhose lives are in
a condition of destitution andmisery. It may not be able to change matters radically.At least, it should
take earnest steps in that direction.What is important for those at the bottom of the economicpyramid
is that they are not denied the opportunity for abetter life. If they, or at least their children, cannot
evenlook forward to that, then a constitutional regime is nothingbut a mockery and a tragic illusion.
Such a response,I am optimistic enough to believe, has the merit of thinning,if not completely
eliminating, the embattled ranksand outposts of ignorance, fanaticism and error. That forme would
be more in accordance with the basic propositionof our polity. This is not therefore to preach a
doctrine of object surrender to the forces apparently bent on the adoption of a way of life so totally
opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation of the
vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.

It is in the light of the views above expressed that I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

Footnotes

1 Rep. Act. No. 1700, 12 Laws & Res. 102 (1957). The text of the statute is
hereunder reproduced in full:

"AN ACT TO OUTLAW THE COMMUNIST PARTY OF THE PHILIPPINES AND

SIMILAR ASSOCIATIONS PENALIZING MEMBERSHIP THEREIN, AND FOR
OTHER PURPOSES.

"WHEREAS, the Communist Party of the Philippines, although purportedly a political

party, is in fact an organized conspiracy to overthrow the Government of the
Republic of the Philippines not only by force and violence but also by deceit,
subversion and other illegal means, for the purpose of establishing in the Philippines
a totalitarian regime subject to alien domination and control;

"WHEREAS, the continued existence and activities of the Communist Party of the
Philippines constitutes a clear, present and grave danger to the security of the
Philippines; and

"WHEREAS, in the face of the organized, systematic and persistent subversion,

national in scope but international in direction, posed by the Communist Party of the
Philippines and its activities, there is urgent need for special legislation to cope with
this continuing menace to the freedom and security of the country: Now, therefore,

"Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

"Section 1. This Act shall be known as Anti-Subversion Act.

"Section 2. The Congress hereby declares the Communist Party of the Philippines to
be an organized conspiracy to overthrow the Government of the Republic of the
Philippines for the purpose of establishing in the Philippines a totalitarian regime and
place the Government under the control and domination of an alien power. The said
party and any other organization having the same purpose and their successors are
hereby declared illegal and outlawed.

Section 3. As used in this Act, the term 'Communist Party of the Philippines' shall me
and and include the organizations now known as the Communist Party of the
Philippines and its military arm, theHukbong Mapagpalayang Bayan, formerly known
as HUKBALAHAPS, and any successors of such organizations.
"Section 4. After the approval of this Act, whoever knowingly, willfully and by overt
acts affiliates himself with, becomes or remains a member of the Communist Party of
the Philippines and/or its successor or of any subversive association as defined in
section two hereof shall be punished by the penalty of arresto mayor and shall be
disqualified permanently from holding any public office, appointive and elective, and
from exercising the right to vote; in case of a second conviction, the principal penalty
shall be prision correccional, and in all subsequent convictions the penalty of prision
mayor shall be imposed; and any alien convicted under this Act shall be deported
immediately after he shall have served the sentence imposed upon him: Provided,
That if such member is an officer or a ranking leader of the Communist Party of the
Philippines or of any subversive association as defined in section two hereof, or if
such member takes up arms against the Government he shall be punished by prision
mayor to deal with all the accessory penalties provided therefor in the Revised Penal
Code: And provided, finally, That one who conspires with any other person to
overthrow the Government of the Republic of the Philippines or the government of
any of its political subdivisions by force, violence, deceit, subversion or other illegal
means, for the purpose of placing such Government or political subdivision under the
control and domination of any alien power, shall be punished by prision
correccional to prision mayor with all the accessory penalties provided therefor in the
same Code.

"Section 5. No prosecution under this Act shall be made unless the city or provincial
fiscal, or any special attorney or prosecutor duly designated by the Secretary of
Justice as the case may be, finds after due investigation of the facts, that a prima
facie case for violation of this Act exists against the accused, and thereafter presents
an information in court against the said accused in due form, and certifies under oath
that he has conducted a proper preliminary investigation thereof, with notice,
whenever it is possible to give the same, to the party concerned, who shall have the
right to be represented by counsel, to testify, to have compulsory process for
obtaining witness in his favor, and to cross-examine witnesses against
him: Provided, That the preliminary investigation of any offense defined and
penalized herein by prision mayor to death shall be conducted by the property Court
of First Instance.

"Section 6. Any person who knowingly furnishes false evidence in any action brought
under this Act shall be punished by prision correccional.

"Section 7. No person shall be convicted of any of the offenses penalized herein

with prision mayor to death unless on the testimony of at least two witnesses to the
same overt act or on confession of the accused in open court.

"Section 8. Within thirty days after the approval of this Act, any person who is a
member of the Communist Party of the Philippines or of any such association or
conspiracy, who desires to renounce such membership may do so in writing and
under oath before a municipal or city mayor, a provincial governor, or a person
authorized by law to administer oaths. Such renunciation shall exempt such person
or persons from the penal sanction of this Act, but the same shall in no way exempt
him from liability for criminal acts or for any violation of the existing laws of the
Republic of the Philippines committed before this Act takes effect.
"Section 9. Nothing in this Act shall be interpreted as a restriction to freedom of
thought, of assembly and of association for purposes not contrary to law as
guaranteed by the Constitution.

"Approved, June 20, 1957."

2 Delegate Jose P. Laurel (of the 1934 Constitutional Convention) referred to the
Anglo-American origin of this right thus:

"No ex post facto law or bill of attainder shall be enacted. This provision is found in
the American Federal Constitution (Art. 1, Sec. 9) and is applicable to the States (id.
Sec. 10). An ex post facto law is a law which makes an act punishable in a manner in
which it was not punishable when committed. It creates or aggravates the crime or
increases the punishment, or changes the rules of evidence for the purpose of
conviction. The prohibition against the passage of ex post facto laws is an additional
bulwark of personal security — protecting the citizen from punishment by legislative
act which has a retrospective operation.

"The phrase ex post facto has a technical meaning and refers to crimes and criminal
proceedings. It is in this sense that it was used in England. It was in this sense that
the convention of 1787 understood it. (Calder v. Bull, supra; Watson v. Mercer, 8 Pet.
88, 110; Suterlee v. Mathewson, 2 Peters, 380; Kring v. Missouri, 107 U.S. 221.) This
interpretation was upheld by our Supreme Court (U.S. vs. Ang Ken Ko, 6 Phil. 376.).

"A bill of attainder is a legislative act which inflicts punishment without judicial trial.
(Cummings vs. United States, 4 Wall. 277, 18 L. ed. 356.) In England, the Bill of
Attainder was an act of Parliament by which a man was tried, convicted and
sentenced to death without a jury, without a hearing in court, without hearing the
witnesses against him and without regard to the rules of evidence. His blood was
attained or corrupted, rendering him devoid of all heritable quality — of acquiring and
disposing property by descent. (Ex parte Garland, 4 Wall. 333, 18 L. ed 366.) If the
penalty imposed was less than death, the act was known as a "bill of pains and
penalties." Bills of attainder, like ex post facto laws, were favorite methods of Stuart
oppression. Once, the name of Thomas Jefferson was included in a bill of attainder
presented to Parliament because of his reform activities.

"Often, such bills were 'stimulated by ambition or personal resentment, and vindictive
malice.' (Calder v. Bull, supra.) A well known case illustrating the ruthless manner in
which a bill of attainder was resorted to was that of Thomas Wentworth, chief adviser
of Charles I. He was brought to impeachment charged with attempting to subvert the
liberties of England. He defended himself so ably that his enemies, fearing his
acquittal, withdrew the impeachment and a bill of attainder was passed instead.
Wentworth was beheaded. Bills of attainder were also passed in the Colonies (North,
The Constitution of the U.S., its Sources and Applications, p. 85.) The prohibition in
the Bill of Rights, therefore, seeks to present acts of violence and injustice brought
about the passage of such bills." (3 J. Laurel, Proceedings of the Constitutional
Convention 661-663 [1966]).

3 Cummings vs. United States, 4 Wall. (71 U.S.) 277 (1867); accord, Ex
parte Garland, 4 Wall. (71 U.S.) 333 (1867). This definition was adopted by this Court
in People vs. Carlos, 78 Phil. 535, 544 (1947) and in People vs. Montenegro, 91 Phil.
883,885 (1952).
4 De Veau vs. Braisted, 363 U.S. 144, 160 (1960); United States vs. Lovett, 328 U.S.
303, 615, (1946).

5 Chief Justice Warren referred to the Bill of Attainder Chause as an implementation

of the separation of powers, "a general safeguard against legislative exercise of
judicial function, or more simply, trial by legislature." United States vs. Brown, 381
U.S. 437 (1964).

6 "It is the peculiar province of the legislature to prescribe general rules for the
government of society; the application of those rules to individuals in society would
seem to be the duty of other departments." Fletcher vs. Peck, 6 Cranch (10 U.S.)87,
136 (1810).

7 "The legislative body in enacting bills of attainder exercises the powers and office
of judge, it pronounces upon the guilt of the party, without any of the forms or
safeguards of trial...it fixes the degree of punishment in accordance with its own
notions of the enormity of the offense." Cummings vs. Missouri, supra note 3.

8 Bills of this sort, says Mr. Justice Story, have been most usually passed in England
in times of rebellion or gross subserviency to the crown, or of violent political
excitements; periods, in which all nations are most liable (as well as free as the
enslabe) to forget their duties, and to trample upon the rights and liberties of others."
Comm. sec. 1344, in re Young Sing Hee, 36 Fed. 347, 440. During the American
revolution legislative punishments had been continued by state legislatures, when
numerous bills of attainder were enacted against the Torries. 1C. Antieu, Modern
Constitutional Law, 425.

9 C. Antieu, supra note 8 at 423.

10 The Supreme Court of the United States said in Fleming vs. Nestor, 363 U.S. 603,
613-14 (1960):

"In determining whether legislation which bases a disqualification on the happening

of a certain past event imposes a punishment, the Court has sought to discern the
objects on which the enactment in question was focused. Where the source of
legislative concern can be thought to be the activity or status from which the
individual is barred, the disqualification is not punishment even though it may bear
harshly upon one affected."

11 73 Stat. 536, 29 U.S.C. sec. 504 (1958 ed. Supp. IV).

12 381 U.S. 437 (1965) (5-4 vote).

13 Keyishian vs. Board of Regents, 385 U.S. 589 (1967);Elfbrandt vs. Russell, 384
U.S. 11 (1966).

14 Cf . Scales vs. United States, 367 U.S. 203 (1961); Noto vs. United States, 367
U.S. 290 (1961).

15 During the Senate deliberations on the bill, Senator Cea remarked: "I have
inserted the words 'overt acts' because we are punishing membership in the
Communist Party. I would like that membership to be proved by overt acts, by
positive acts, because it may happen that one's name may appear in the list of
members." Senate Cong. Rec. May 22, 1957, p. 1900.

16 Board of Governors of Federal Reserve System vs. Agnew, 329 U.S. 441.

17 New York ex rel. Bryant vs. Zimmerman, 278 U.S. 63(1928).

18 Repealed by Rep. Act 4241.

19 Philippine Ass'n of Free Labor Unions vs. Secretary of Labor, Feb. 27, 1969, 27
SCRA 40.

20 United States vs. Lovett, 328 U.S. 303 (1946).

21 Cummings vs. Missouri, 4 Wall. (71 U.S.) 277 (1867).

22 Ex parte Garland, 4 Wall. (71 U.S.) 333 (1867).

23 United States vs. Lovett, 328 U.S. 303 (1946).

24 United States vs. Brown, 381 U.S. 437 (1965).

25 The Bounds of Legislative Specification: A Suggested Approach to the Bill of

Attainder Clause, 72 Yale L. J. 330, 351-54(1962).

26 278 U.S. 63 (1928).

27 Id. at 75-77.

28 People vs. Evangelista, 57 Phil. 375 (1932); see also People vs. Evangelista, 57
Phil., 372 (1932); People vs. Capadocia, 57 Phil. 364 (1932); People vs. Evangelista,
57 Phil. 354 (1932); People vs. Feleo, 57 Phil. 451 (1932); People vs. nabong, 57
Phil. 455 (1932).

29 People vs. Lava, L-4974-78, May 16, 1969.

30 L-33864, Dec. 11, 1971, 42 SCRA 448.

31 United States vs. Lovett, 328 U.S. 303, 318 (1946).

32 341 U.S. 716 (1951).

33 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1960).

34 Sec. 8.

35 E. g., Kovacs vs. Cooper, 336 U.S. 77 (1949); Vera vs. Arca, L-25721, May 26,
1969, 28 SCRA 351.
36 Freund, Review of Facts in Constitutional Cases, in Supreme Court and Supreme
Law 47-48 (Cahn ed. 1954).

37 291 U.S. 502, 537 (1934).

38 L-33964, Dec. 11, 1971, 41 SCRA 448.

39 Communist Party vs. S.A.C. Board, 367 U.S. 94 (1961).

40 Dennis vs. United States, 341 U.S. 494, 509 (1951).

41 Id. at 501.

42 Shelton vs. Tucker, 364 U.s. 479 (1960).

43 Scales vs. United States, 367 U.S. 203 (1961); see also Noto vs. United States,
367 U.S. 290 (1961).

44 Frankfeld vs. United States, 198 F. 2d 879 (4th Cir. 1952).

45 People vs. nabong, 57 Phil. 455, 458 (1932).

46 18 U.S.C. sec. 2385. (emphasis added).

47 367 U.S. 203 (1961).

48 Communist Party vs. Subversive Activities Control Board, 367 U.S. 1 (1961).

49 P. A. Freud, The Supreme Court of the United States 75 (1961).

50 Const., art VI, Sec. 21 (1).

51 Government vs. Hongkong & Shaihai Banking Corp., 66 Phil. 483 (1938).

52 Lindasan vs. Commission on Elections, L-28089, Oct. 25, 1967, 21 SCRA 496.

FERNANDO, J., concurring:

1 Rep. Act No. 1700 (1957)..

2 According to Art. III, Sec. 1, par. 11: "No ex post facto law or bill of attainder shall
be enacted."

3 According to Art. III, Sec. 1, par. 8: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peacebly to assemble and
petition the Government for redress of grievances."

4 According to Art. III, Sec. 1 par. 4: "The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired."
5 Footnote 2, p. 9 of Opinion of the Court.

6 4 Wall. 277 (1867).

7 4 Wall. 333 (1867).

8 Cf. United States v. A Lovett, 328 US 303 )1946).

9 4 Wall. 277 (1867).

10 Ibid, 323, 325.

11 4 Wall. 333 (1867).

12 Ibid, 377-378.

13 328 US 303.

14 Ibid, 315-316.

15 381 US 437.

16 Ibid, 442.

17 Ibid, 449-450.

18 367 US 1 (1961).

19 Ibid, 86-87.

20 Opinion of the Court, p. 15.

21 According to Art. III, Sec. 1, par. 6: "The right to form associations or societies for
purposes not contrary to law shall not be abridged." Paragraph 8 of this section
reads as follows: "No law shall be passed abridging the freedom of speech, or of the
press, or the right of the people peacebly to assemble and petition the Government
for redress of grievances."

22 Jefferson's First Instance Address, March 4, 1801, in Padover, ed., The Complete
Jefferson, 385 (1943).

23 Hook, Heresy, Yes-Conspiracy, No. 71 (1953).

24 Gonzalez v. Commission on Elections, 27 SCRA 835,871(1969) citing Shelton v.

Tucker, 364 US 479 (1960) and NAACP v. Button, 371 US 415 (1963).

25 NAACP vs. Alabama, 377 US 288 (1964).

26 Communist Party v. Subversive Activities Control Board, 367 US 1, 148.

FELONIES AND OFFENSES

II. Act and Omission

1. People v. Gonzales, 183 SCRA 309 (1990)

SECOND DIVISION

G.R. No. 80762 March 19, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FAUSTA GONZALES, AUGUSTO GONZALES, CUSTODIO GONZALES, SR., CUSTODIO
GONZALES, JR., NERIO GONZALES and ROGELIO LANIDA, accused, CUSTODIO
GONZALES, SR., accused-appellant.

SARMIENTO, J.:

In a decision 1 dated October 31, 1984, the Regional Trial Court of Iloilo, Branch XXXVIII (38), in Criminal
Case No. 13661, entitled "People of the Philippines vs. Fausta Gonzales, Augusto Gonzales, Custodia
Gonzales, Custodio Gonzales, Jr., Nerio Gonzales and Rogelio Lanida," found all the accused, except
Rogelio Lanida who eluded arrest and up to now has remain at large and not yet arrained, guilty beyond
reasonable doubt of the crime of murder as defined under Article 248 of the Revised Penal Code. They
were sentenced "to suffer the penalty of imprisonment of twelve (12) years and one (1) day to seventeen
(17) years and four (4) months of reclusion temporal, to indemnify the heirs of the deceased victim in the
amount of P40,000.00, plus moral damages in the sum of P14,000.00 and to pay the costs." 2 The victim
was Lloyd Peñacerrada, 44, landowner, and a resident of Barangay Aspera, Sara, Iloilo.

Through their counsel, all the accused, except of course Rogelio Lanida, filed a notice of appeal
from the trial court's decision. During the pendency of their appeal and before judgment thereon
could be rendered by the Court of Appeals, however, all the accused-appellants, except Custodio
Gonzales, Sr., withdrew their appeal and chose instead to pursue their respective applications for
parole before the then Ministry, now Department, of Justice, Parole Division. 3

On October 27, 1987, the Court of Appeals rendered a decision 4 on the appeal of Custodio Gonzales,
Sr. It modified the appealed decision in that the lone appellant was sentenced to reclusion perpetua and
to indemnify the heirs of Lloyd Peñacerrada in the amount of P30,000.00. In all other respect, the decision
of the trial court was affirmed. Further, on the basis of our ruling in People vs. Ramos, 5 the appellate
court certified this case to us for review. 6

The antecedent facts are as follows:

At around 9:00 o'clock in the evening of February 21, 1981, Bartolome Paja, the barangay captain of
Barangay Tipacla, Ajuy, Iloilo, was awakened from his sleep by the spouses Augusto and Fausta
Gonzales. Augusto informed Paja that his wife had just killed their landlord, Lloyd Peñacerrada, and
thus would like to surrender to the authorities. Seeing Augusto still holding the knife allegedly used in
the killing and Fausta with her dress smeared with blood, Paja immediately ordered a nephew of his
to take the spouses to the police authorities at the Municipal Hall in Poblacion, Ajuy. As instructed,
Paja's nephew brought the Gonzales spouses, who "backrode" on his motorcycle, to the municipal
building. 7 Upon reaching the Ajuy Police sub-station, the couple informed the police on duty of the
incident. That same night, Patrolman Salvador Centeno of the Ajuy Police Force and the Gonzales
spouses went back to Barangay Tipacla. Reaching Barangay Tipacla the group went to Paja's residence
where Fausta was made to stay, while Paja, Patrolman Centeno, and Augusto proceeded to the latter's
residence at Sitio Nabitasan where the killing incident allegedly occurred. 8 There they saw the lifeless
body of Lloyd Peñacerrada, clad only in an underwear, sprawled face down inside the bedroom. 9 The
group stayed for about an hour during which time Patrolman Centeno inspected the scene and started to
make a rough sketch thereof and the immediate surroundings. 10 The next day, February 22, 1981, at
around 7:00 o'clock in the morning, Patrolman Centeno, accompanied by a photographer, went back to
the scene of the killing to conduct further investigations. Fausta Gonzales, on the other hand, was brought
back that same day by Barangay Captain Paja to the police substation in Ajuy. When Patrolman Centeno
and his companion arrived at Sitio Nabitasan, two members of the 321st P.C. Company stationed in Sara,
Iloilo, who had likewise been informed of the incident, were already there conducting their own
investigation. Patrolman Centeno continued with his sketch; photographs of the scene were likewise
taken. The body of the victim was then brought to the Municipal Hall of Ajuy for autopsy.

The autopsy of Lloyd Peñacerrada's cadaver was performed at about 11:20 a.m. on February 22,
1981; after completed, a report was made with the following findings:

PHYSICAL FINDINGS

1. Deceased is about 5 ft. and 4 inches in height, body moderately built and on
cadaveric rigidity.

EXTERNAL FINDINGS

1. Puncture wound, 1 cm. in width, 9 cm. in length, located at the lower 3rd anterior
aspect of the arm, right, directed upward to the right axillary pit.

2. Stab wound, thru and thru, located at the proximal 3rd, forearm right, posterior
aspect with an entrance of 5 cm. in width and 9 cm. in length with an exit at the
middle 3rd, posterior aspect of the forearm, right, with 1 cm. wound exit.

3. Stab wound, thru and thru, located at the middle 3rd, posterior aspect of the
forearm right, 1 cm. in width.

4. Incised wound, 4 cm. long, depth visualizing the right lateral border of the sternum,
6th and 7th ribs, right located 1.5 inches below the right nipple.

5. Stab wound, 2 cm. in width, 10.5 cm. in depth, directed inward to the thoracic
cavity right, located at the left midclavicular line at the level of the 5th rib left.

6. Stab wound, 2 cm. in width, 9.5 cm. in depth directed toward the right thoracic
cavity, located at the mid left scapular line at the level of the 8th intercostal space.

7. Puncture wound, 1 cm. in width, located at the base of the left armpit directed
toward the left thoracic cavity.

8. Puncture wound, 1 cm. in width, 11 cm. in length, directed toward the left deltoid
muscle, located at the upper 3rd axilla left.
9. Puncture wound, 3 cm in width, 11.5 cm in length, located at the anterior aspect,
proximal 3rd arm left, directed downward.

10. Stab wound, thru and thru, 2.5 cm. in width, and 5 cm. in length, medial aspect,
palm right.

11. Stabwound, 4 cm.in width, iliac area, right, directed inward with portion of large
intestine and mysentery coming out.

12. Stab wound, 4 cm. in width, located at the posterior portion of the shoulder, right,
directed downward to the aspex of the light thoracic cavity.

13. Incised wound, 1 cm. in width, 10 cm. in length, located at the medial portion of
the medial border of the right scapula.

14. Incised wound, 1 cm. in width, 4.5 cm. in length, located at the posterior aspect of
the right elbow.

15. Incised wound, 1 cm. in width, 2 cm. in length, located at the posterior portion,
middle 3rd, forearm, right.

16. Lacerated wound at the anterior tantanelle with fissural fracture of the skull.

INTERNAL FINDINGS:

1. Stab wound No. 5, injuring the left ventricle of the heart.

2. Stab wound No. 6, severely injuring the right lower lobe of the
lungs.

3. Stab wound No. 7, injuring the right middle lobe of the lungs.

4. Stab wound No. 11, injuring the descending colon of the large
intestine, thru and thru.

5. Stab wound No. 12, severely injuring the apex of the right lungs
(sic).

CAUSE OF DEATH:

MASSIVE HEMMORRHAGE DUE TO MULTIPLE

LACERATED, STABBED (sic), INCISED AND
PUNCTURED WOUNDS.

JESUS
D.
ROJAS,
M.D.
Rural
Health
Physici
 an
Ajuy,
Iloilo 11

The autopsy report thus showed that Dr. Rojas "found sixteen (16) wounds, five (5) of which are fatal
because they penetrated the internal organs, heart, lungs and intestines of the deceased." 12

On February 23, two days after the incident, Augusto Gonzales appeared before the police sub-
station in the poblacion of Ajuy and voluntarily surrendered to Police Corporal Ben Sazon for
detention and protective custody for "having been involved" in the killing of Lloyd Peñacerrada. He
requested that he be taken to the P.C. headquarters in Sara, Iloilo where his wife, Fausta, was
already detained having been indorsed thereat by the Ajuy police force. 13

Based on the foregoing and on the investigations conducted by the Ajuy police force and the 321st
P.C. Company, an information for murder dated August 26, 1981, was filed by the Provincial Fiscal
of Iloilo against the spouses Augusto and Fausta Gonzales. The information read as follows:

The undersigned Provincial Fiscal accuses FAUSTA GONZALES and AUGUSTO

GONZALES of the crime of MURDER committed as follows:

That on or about the 21st day of February, 1981, in the Municipality of Ajuy, Province
of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named
accused with four other companions whose identities are still unknown and are still at
large, armed with sharp-pointed and deadly weapons, conspiring, confederating and
helping each other, with treachery and evident premeditation, with deliberate intent
and decided purpose to kill, and taking advantage of their superior strength and
number, did then and there wilfully, unlawfully and feloniously attack, assault, stab,
hack, hit and wound Lloyd D. Peñacerrada, with the weapons with which said
accused were provided at the time, thereby inflicting upon said Lloyd D. Peñacerrada
multiple wounds on different parts of his body as shown by autopsy report attached
to the record of this case which multifarious wounds caused the immediate death of
said Lloyd D. Peñacerrada.

CONTRARY TO LAW.

Iloilo City, August 26, 1981. 14

When arraigned on September 16, 1981, Augusto and Fausta both entered a plea of not guilty.
Before trial, however, Jose Huntoria 15 who claimed to have witnessed the killing of Lloyd Peñacerrada,
presented himself to Nanie Peñacerrada, the victim's widow, on October 6, 1981, and volunteered to
testify for the prosecution. A reinvestigation of the case was therefore conducted by the Provincial Fiscal
of Iloilo on the basis of which an Amended Information, 16 dated March 3, 1982, naming as additional
accused Custodio Gonzales, Sr. (the herein appellant), Custodio Gonzales, Jr., Nerio Gonzales, and
Rogelio Lanida, was filed. Again, all the accused except as earlier explained, Lanida, pleaded not guilty to
the crime.

At the trial, the prosecution presented Dr. Jesus Rojas, the Rural Health physician of Ajuy who
conducted the autopsy on the body of the victim; Bartolome Paja, the barangay captain of Barangay
Tipacla; Patrolman Salvador Centeno and Corporal Ben Sazon of the Ajuy Police Force; Sgt. (ret)
Nicolas Belicanao and Sgt. Reynaldo Palomo of the 321st P.C. Company based in Sara, Iloilo; Jose
Huntoria; and Nanie Peñacerrada, the widow.
Dr. Jesus Rojas testified that he performed the autopsy on the body of the deceased Lloyd
Penacerrada at around 11:20 a.m. on February 22, 1981 after it was taken to the municipal hall of
Ajuy. 17 His findings revealed that the victim suffered from 16 wounds comprising of four (4) punctured
wounds, seven (7) stab wounds, four (4) incised wounds, and one (1) lacerated wound. In his testimony,
Dr. Rojas, while admitting the possibility that only one weapon might have caused all the wounds (except
the lacerated wound) inflicted on the victim, nevertheless opined that due to the number and different
characteristics of the wounds, the probability that at least two instruments were used is high. 18 The police
authorities and the P.C. operatives for their part testified on the aspect of the investigation they
respectively conducted in relation to the incident. Nanie Peñacerrada testified mainly on the expenses
she incurred by reason of the death of her husband while Barangay Captain Bartolome Paja related the
events surrounding the surrender of the spouses Augusto and Fausta Gonzales to him, the location of the
houses of the accused, as well as on other matters.

By and large, the prosecution's case rested on Huntoria's alleged eyewitness account of the
incident. According to Huntoria, who gave his age as 30 when he testified on July 27, 1982, 19 at 5:00
o'clock in the afternoon on February 21, 1981, he left his work at Barangay Central, in Ajuy, Iloilo where
he was employed as a tractor driver by one Mr. Piccio, and walked home; 20 he took a short-cut
route. 21 While passing at the vicinity of the Gonzales spouses' house at around 8:00 o'clock in the
evening, he heard cries for help. 22 Curiosity prompted him to approach the place where the shouts were
emanating. When he was some 15 to 20 meters away, he hid himself behind a clump of banana
trees. 23 From where he stood, he allegedly saw all the accused ganging upon and takings turns in
stabbing and hacking the victim Lloyd Peñacerrada, near a "linasan" or threshing platform. He said he
clearly recognized all the accused as the place was then awash in moonlight. 24 Huntoria further
recounted that after the accused were through in stabbing and hacking the victim, they then lifted his body
and carried it into the house of the Gonzales spouses which was situated some 20 to 25 meters away
from the "linasan". 25 Huntoria then proceeded on his way home. Upon reaching his house, he related
what he saw to his mother and to his wife 26 before he went to sleep. 27 Huntoria explained that he did not
immediately report to the police authorities what he witnessed for fear of his life. 28 In October 1981
however, eight months after the extraordinary incident he allegedly witnessed, bothered by his
conscience plus the fact that his father was formerly a tenant of the victim which, to his mind, made him
likewise a tenant of the latter, he thought of helping the victim's widow, Nanie Peñacerrada. Hence, out of
his volition, he travelled from his place at Sitio Nabitasan, in Barangay Tipacla Municipality of Ajuy, to
Sara, Iloilo where Mrs. Peñacerrada lived, and related to her what he saw on February 21, 1981. 29

Except Fausta who admitted killing Lloyd Peñacerrada in defense of her honor as the deceased
attempted to rape her, all the accused denied participation in the crime. The herein accused-
appellant, Custodio Gonzales, Sr., claimed that he was asleep 30 in his house which was located some
one kilometer away from the scene of the crime 31when the incident happened. He asserted that he only
came to know of it after his grandchildren by Augusto and Fausta Gonzales went to his house that night
of February 21, 1981 to inform him. 32

The trial court disregarded the version of the defense; it believed the testimony of Huntoria.

On appeal to the Court of Appeals, Custodia Gonzales, Sr., the lone appellant, contended that the
trial court erred in convicting him on the basis of the testimony of Jose Huntoria, the lone alleged
eyewitness, and in not appreciating his defense of alibi.

The Court of Appeals found no merit in both assigned errors. In upholding Huntoria's testimony, the
appellate court held that:

. . . Huntoria positively identified all the accused, including the herein accused-
appellant, as the assailants of Peñacerrada. (TSN, p. 43, July 27, 1982) The claim
that Huntoria would have difficulty recognizing the assailant at a distance of 15 to 20
meters is without merit, considering that Huntoria knew all the accused. (Id., pp. 37-
 39) If Huntoria could not say who was hacking and who was stabbing the deceased,
it was only because the assailant were moving around the victim.

As for the delay in reporting the incident to the authorities, we think that Huntoria's
explanation is satisfactory. He said he feared for his life. (Id., pp. 50-51, 65) As stated
in People vs. Realon, 99 SCRA 442, 450 (1980): "The natural reticence of most
people to get involved in a criminal case is of judicial notice. As held in People
v. Delfin, '. . . the initial reluctance of witnesses in this country to volunteer
information about a criminal case and their unwillingness to be involved in or dragged
into criminal investigations is common, and has been judicially declared not to affect
credibility.'"

It is noteworthy that the accused-appellant self admitted that he had known Huntoria
for about 10 years and that he and Huntoria were in good terms and had no
misunderstanding whatsoever. (TSN, p. 33, July 18, 1984) He said that he could not
think of any reason why Huntoria should implicate him. (Id., p. 34) Thus, Huntoria's
credibility. is beyond question. 33

The Court of Appeals likewise rejected the appellant's defense of alibi. 34 The appellate court,
however, found the sentence imposed by the trial court on the accused-appellant erroneous. Said the
appellate court:

Finally, we find that the trial court erroneously sentenced the accused-appellant to 12
years and 1 day to 17 years and 4 months of reclusion temporal. The penalty for
murder under Article 248 isreclusion temporal in its maximum period to death. As
there was no mitigating or aggravating circumstance, the imposible penalty should
be reclusion perpetua. Consequently, the appeal should have been brought to the
Supreme Court. With regard to the indemnity for death, the award of P40,000.00
should be reduced to P30,000.00, in accordance with the rulings of the Supreme
Court. (E.g., People v. De la Fuente, 126 SCRA 518 (1983); People v. Atanacio, 128
SCRA 31 (1984); People v. Rado, 128 SCRA 43 (1984); People v. Bautista, G.R. No.
68731, Feb. 27, 1987). 35

The case, as mentioned earlier, is now before us upon certification by the Court of Appeals, the
penalty imposed being reclusion perpetua.

After a careful review of the evidence adduced by the prosecution, we find the same insufficient to
convict the appellant of the crime charged.

To begin with, the investigation conducted by the police authorities leave much to be desired.
Patrolman Centeno of the Ajuy police force in his sworn statements 36 even gave the date of the
commission of the crime as "March 21, 1981." Moreover, the sketch 37 he made of the scene is of little
help. While indicated thereon are the alleged various blood stains and their locations relative to the scene
of the crime, there was however no indication as to their quantity. This is rather unfortunate for the
prosecution because, considering that there are two versions proferred on where the killing was carried
out, the extent of blood stains found would have provided a more definite clue as to which version is more
credible. If, as the version of the defense puts it, the killing transpired inside the bedroom of the Gonzales
spouses, there would have been more blood stains inside the couple's bedroom or even on the ground
directly under it. And this circumstance would provide an additional mooring to the claim of attempted
rape asseverated by Fausta. On the other hand, if the prosecution's version that the killing was committed
in the field near the linasan is the truth, then blood stains in that place would have been more than in any
other place.
The same sloppiness characterizes the investigation conducted by the other authorities. Police
Corporal Ben Sazon who claimed that accused Augusto Gonzales surrendered to him on February
23, 1981 failed to state clearly the reason for the "surrender." It would even appear that Augusto
"surrendered" just so he could be safe from possible revenge by the victim's kins. Corporal Sazon
likewise admitted that Augusto never mentioned to him the participation of other persons in the
killing of the victim. Finally, without any evidence on that point, P.C. investigators of the 321st P.C.
Company who likewise conducted an investigation of the killing mentioned in their criminal
complaint 38 four other unnamed persons, aside from the spouses Augusto and Fausta Gonzales, to have
conspired in killing Lloyd Peñacerrada.

Now on the medical evidence. Dr. Rojas opined that it is possible that the sixteen wounds described
in the autopsy report were caused by two or more bladed instruments. Nonetheless, he admitted the
possibility that one bladed instrument might have caused all. Thus, insofar as Dr. Rojas' testimony
and the autopsy report are concerned, Fausta Gonzales' admission that she alone was responsible
for the killing appears not at all too impossible. And then there is the positive testimony of Dr. Rojas
that there were only five wounds that could be fatal out of the sixteen described in the autopsy
report. We shall discuss more the significance of these wounds later.

It is thus clear from the foregoing that if the conviction of the appellant by the lower courts is to be
sustained, it can only be on the basis of the testimony of Huntoria, the self-proclaimed eyewitness.
Hence, a meticulous scrutiny of Huntoria's testimony is compelling.

To recollect, Huntoria testified that he clearly saw all the accused, including the appellant, take turns
in hacking and stabbing Lloyd Peñacerrada, at about 8:00 o'clock in the evening, on February 21,
1981, in the field near a "linasan" while he (Huntoria) stood concealed behind a clump of banana
trees some 15 to 20 meters away from where the crime was being committed. According to him, he
recognized the six accused as the malefactors because the scene was then illuminated by the
moon. He further stated that the stabbing and hacking took about an hour. But on cross-
examination, Huntoria admitted that he could not determine who among the six accused did the
stabbing and/or hacking and what particular weapon was used by each of them.

ATTY. GATON (defense counsel on cross-examination):

Q And you said that the moon was bright, is it correct?

A Yes, Sir.

Q And you would like us to understand that you saw the hacking and
the stabbing, at that distance by the herein accused as identified by
you?

A Yes, sir, because the moon was brightly shining.

Q If you saw the stabbing and the hacking, will you please tell this
Honorable Court who was hacking the victim?

A Because they were surrounding Peñacerrada and were in constant

movement, I could not determine who did the hacking.

ATTY. GATON:
 The interpretation is not clear.

COURT:

They were doing it rapidly.

A The moving around or the hacking or the "labu" or "bunu" is rapid. I

only saw the rapid movement of their arms, Your Honor, and I cannot
determine who was hacking and who was stabbing. But I saw the
hacking and the stabbing blow.

ATTY. GATON:

Q You cannot positively identify before this Court who really hacked
Lloyd Peñacerrada?

A Yes sir, I cannot positively tell who did the hacking.

Q And likewise you cannot positively tell this Honorable Court who
did the stabbing?

A Yes sir, and because of the rapid movements.

Q I noticed in your direct testimony that you could not even identify
the weapons used because according to you it was just flashing?

A Yes, sir. 39

(Emphasis supplied)

From his very testimony, Huntoria failed to impute a definite and specific act committed, or
contributed, by the appellant in the killing of Lloyd Peñacerrada.

It also bears stressing that there is nothing in the findings of the trial court and of the Court of
Appeals which would categorize the criminal liability of the appellant as a principal by direct
participation under Article 17, paragraph 1 of the Revised Penal Code. Likewise, there is nothing in
the evidence for the prosecution that inculpates him by inducement, under paragraph 2 of the same
Article 17, or by indispensable cooperation under paragraph 3 thereof. What then was the direct part
in the killing did the appellant perform to support the ultimate punishment imposed by the Court of
Appeals on him?

Article 4 of the Revised Penal Code provides how criminal liability is incurred.

Art. 4. Criminal liability — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
 2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual means.

(Emphasis supplied.)

Thus, one of the means by which criminal liability is incurred is through the commission of a felony.
Article 3 of the Revised Penal Code, on the other hand, provides how felonies are committed.

Art. 3. Definition — Acts and omissions punishable by law are felonies (delitos).

Felonies are committed not only by means of deceit (dolo) but also by means of fault
(culpa).

There is deceit when the act is performed with deliberate intent; and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or lack
of skill.

(Emphasis supplied.)

Thus, the elements of felonies in general are: (1) there must be an act or omission; (2) the act or
omission must be punishable under the Revised Penal Code; and (3) the act is performed or the
omission incurred by means of deceit or fault.

Here, while the prosecution accuses, and the two lower courts both found, that the appellant has
committed a felony in the killing of Lloyd Peñacerrada, forsooth there is paucity of proof as to what
act was performed by the appellant. It has been said that "act," as used in Article 3 of the Revised
Penal Code, must be understood as "any bodily movement tending to produce some effect in the
external world." 40 In this instance, there must therefore be shown an "act" committed by the appellant
which would have inflicted any harm to the body of the victim that produced his death.

Yet, even Huntoria, as earlier emphasized, admitted quite candidly that he did not see who
"stabbed" or who "hacked" the victim. Thus this principal witness did not say, because he could not
whether the appellant "hacked or "stabbed" victim. In fact, Huntoria does not know what specific act
was performed by the appellant. This lack of specificity then makes the case fall short of the test laid
down by Article 3 of the Revised Penal Code previously discussed. Furthermore, the fact that the
victim sustained only five fatal wounds out of the total of sixteen inflicted, as adverted to above, while
there are six accused charged as principals, it follows to reason that one of the six accused could
not have caused or dealt a fatal wound. And this one could as well be the appellant, granted ex
gratia argumenti that he took part in the hacking and stabbing alleged by Huntoria. And why not
him? Is he not after all the oldest (already sexagenarian at that time) and practically the father of the
five accused? And pursuing this argument to the limits of its logic, it is possible, nay even probable,
that only four, or three, or two of the accused could have inflicted all the five fatal wounds to the
exclusion of two, three, or four of them. And stretching the logic further, it is possible, nay probable,
that all the fatal wounds, including even all the non-fatal wounds, could have been dealt by Fausta in
rage against the assault on her womanhood and honor. But more importantly, there being not an iota
of evidence that the appellant caused any of the said five fatal wounds, coupled with the
prosecution's failure to prove the presence of conspiracy beyond reasonable doubt, the appellant's
conviction can not be sustained.

Additionally, Huntoria's credibility as a witness is likewise tarnished by the fact that he only came out
to testify in October 1981, or eight long months since he allegedly saw the killing on February 21,
1981. While ordinarily the failure of a witness to report at once to the police authorities the crime he
had witnessed should not be taken against him and should not affect his credibility, 41 here, the
unreasonable delay in Huntoria's coming out engenders doubt on his veracity. 42 If the silence of coming
out an alleged eyewitness for several weeks renders his credibility doubtful, 43 the more it should be for
one who was mute for eight months. Further, Huntoria's long delay in reveiling what he allegedly
witnessed, has not been satisfactorily explained. His lame excuse that he feared his life would be
endangered is too pat to be believed. There is no showing that he was threatened by the accused or by
anybody. And if it were true that he feared a possible retaliation from the accused, 44 why did he finally
volunteer to testify considering that except for the spouses Augusto and Fausta Gonzales who were
already under police custody, the rest of the accused were then still free and around; they were not yet
named in the original information, 45 thus the supposed danger on Huntoria's life would still be clear and
present when he testified.

Moreover, Huntoria is not exactly a disinterested witness as portrayed by the prosecution. He

admitted that he was a tenant of the deceased. In fact, he stated that one of the principal reasons
why he testified was because the victim was also his landlord.

xxx xxx xxx

Q Now, Mr. Huntoria, why did it take you so long from the time you
saw the stabbing and hacking of Lloyd Peñacerrada when you told
Mrs. Peñacerrada about what happened to her husband?

A At first I was then afraid to tell anybody else but because I was
haunted by my conscience and secondly the victim was also my
landlord I revealed what I saw to the wife of the victim. 46

xxx xxx xxx

(Emphasis ours.)

At this juncture, it may be relevant to remind that under our socioeconomic set-up, a tenant owes the
very source of his livelihood, if not existence itself, from his landlord who provides him with the land
to till. In this milieu, tenants like Huntoria are naturally beholden to their landlords and seek ways and
means to ingratiate themselves with the latter. In this instance, volunteering his services as a
purported eyewitness and providing that material testimony which would lead to the conviction of the
entire family of Augusto Gonzales whose wife, Fausta, has confessed to the killing of Lloyd
Peñacerrada, would, in a perverted sense, be a way by which Huntoria sought to ingratiate himself
with the surviving family of his deceased landlord. This is especially so because the need to get into
the good graces of his landlord's family assumed a greater urgency considering that he ceased to be
employed as early as May 1981. 47 Volunteering his services would alleviate the financial distress he
was in. And Huntoria proved quite sagacious in his choice of action for shortly after he volunteered and
presented himself to the victim's widow, he was taken under the protective wings of the victim's uncle,
one Dr. Biclar, who gave him employment and provided lodging for his family. 48 Given all the foregoing
circumstances, we can not help but dismiss Huntoria as an unreliable witness, to say the least.

At any rate, there is another reason why we find the alleged participation of the appellant in the
killing of Lloyd Peñacerrada doubtful — it is contrary to our customs and traditions. Under the
Filipino family tradition and culture, aging parents are sheltered and insulated by their adult children
from any possible physical and emotional harm. It is therefore improbable for the other accused who
are much younger and at the prime of their manhood, to summon the aid or allow the participation of
their 65-year old 49 father, the appellant, in the killing of their lone adversary, granting that the victim was
indeed an adversary. And considering that the appellant's residence was about one kilometer from the
scene of the crime, 50 we seriously doubt that the appellant went there just for the purpose of aiding his
three robust male sons (Custodia Jr., Nerio, and Augusta), not to mention the brother and sister, Rogelio
and Fausta, in the killing of Lloyd Peñacerrada, even if the latter were a perceived enemy.

Finally, while indeed alibi is a weak defense, 51 under appropriate circumstances, like in the instant case
in which the participation of the appellant is not beyond cavil it may be considered as exculpatory. Courts
should not at once look with disfavor at the defense of alibi for if taken in the light of the other evidence on
record, it may be sufficient to acquit the accused. 52

In fine, the guilt of the appellant has not been proven beyond reasonable doubt.

WHEREFORE, the Decision of the Court of Appeals is REVERSED and SET ASIDE and the
appellant is hereby ACQUITTED. Costs de oficio.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1 Rendered by Judge Constancio E. Jaugan.

2 Decision of the Regional Trial Court, 9.

3 Rollo, 54 and 67.

4 Mendoza, Vicente V., J., ponente; Herrera, Manuel C. and Imperial, Jorge S., JJ.,
concurring.

5 No. L-49818, February 20, 1979, 88 SCRA 486; see also People vs. Galang, G.R.
No. 70713, June 29, 1989; People vs. Centeno, L-48744, October 30, 1981, 108
SCRA 710; and People vs. Daniel, No. L-40330, November 20, 1978, 86 SCRA 511.

6 Rollo, id., 114.

7 T.S.N., session of June 6, 1983. 5-9.

8 Id., Session of May 10, 1983, 34-35.

9 Original Records, 149.

10 T.S.N., Id., session of July 27, 1982, 11.

11 Autopsy Report, Original Records, id., 2-3.

12 Decision of the Regional Trial Court, id., 3.

13 T.S.N., id., session of July 27, 1982, 17-19.

14 Original Records, id., 32.

15 Interchangeably mentioned in the Records of the case as Jose Juntoria, Jose

Hontoria, and Jose Huntoria.

16 Original Records, Id., 81-82.

17 T.S.N., session of June 16, 1982, 3.

18 Id., 24.

19 Id., session of July 27, 1982, 37; see also T.S.N., of the Reinvestigation, session
of January 8, 1982, at 2, Original Records, at 187, where Huntoria gave his age as
29 years old.

20 Id., session of July 27, 1982, 41.

21 Id., 55.

22 Id., 41.

23 Id., 44, 56-57.

24 Id., 45.

25 Id.

26 Id., 48, 63.

27 Id., 64.

28 Id., 51.

29 Id., 52, 66.

30 Id., session of July 18, 1984, 12.

31 Id., 6.

32 Id., 14-15.

33 Rollo, id., 112.

34 Id., 113.

35 Id., 113-114.

36 Original Records, id., 7, 14-16.

 37 Id., 4-5.

38 Id., 1.

39 T.S.N., session on July 27, 1982, 57-59.

40 REYES, THE REVISED PENAL CODE (1977), vol. 1, 68-69.

41 People vs. Punzalan, No. 54562, August 6, 1987, 153 SCRA 1; People vs.
Coronado, No. 68932, October 28, 1986, 145 SCRA 250.

42 People vs. Delavin, Nos. 73762-63 February 27,1987, 148 SCRA

257, citing People vs. Madarang, No. L-22295, January 30, 1970, 31 SCRA 148.

43 People vs. Tulagan, No. 68620, July 22, 1986, 143 SCRA 107.

44 T.S.N., session of July 27, 1982, 50-51.

45 Original Records, id., 32-33.

46 T.S.N., session of July 27, 1982, id., 51-52.

47 Id., 67.

48 Id., 67-68.

49 The appellant was already 68 years old on July 18, 1984; T.S.N., session of July
18, 1984, 3.

50 T.S.N., id., 6.

51 People vs. Arnel Mitra, et al., No. 80405, November 24, 1989; People vs. Berbal
and Juanito, No. 71527, August 10, 1989; People vs. Nolasco, No. 55483, July 28,
1988, 163 SCRA 623; People vs. Pecato, No. L-41008, June 18, 1987, 151 SCRA
14.

52 People vs. Santos, No. 62072, November 11, 1985, 139 SCRA 583.

2. People v. Sylvestre and Atienza, 56 Phil 353 (1931)

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The
former as principal by direct participation, sentenced to fourteen years, eight months, and one day
of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as
accomplice, sentenced to six years and one day ofpresidio mayor; and both are further sentenced to
the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire,
jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged
in the information.

2. Finally, the court erred in not acquitting said defendant from the information upon the
ground of insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her
codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of
Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by
affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930,
the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the
month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal president of Paombong,
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the
complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the complaining husband, lending it his
support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the
adultery case commenced against the accused, and cancelled the bonds given by them, with the
costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage,
Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa
leaves, followed him home to the village of Masocol, and remained there. The accused, Martin
Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the
home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his
wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin
Atienza told said couple to take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that
that was the only way he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin
Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana
Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had
said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran
back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the
schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-
law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61
years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the
house where the fire started, and Romana Silvestre leaving it. lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de
oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin
Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this
petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of
arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her
are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man;
that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband;
that in view of the petition of the accused, who promised to discontinue their life together, and to
leave the barrio of Masocol, and through the good offices of the municipal president of Paombong,
the complaining husband asked for the dismissal of the complaint; that in pursuance of their
promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that
under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who
had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of
Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed
her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at
about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on the Masocol resident, who
had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled
them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat
without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the
strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be
one who does not take a direct part in the commission of the act, who does not force or induce other
to commit it, nor cooperates in the commission of the act by another act without which it would not
have been accomplished, yet cooperates in the execution of the act by previous or simultaneous
actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de
la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their
house as the only means of revenging himself on the barrio residents, her passive presence when
Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the
accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and
none of an agreement to commit the crime in question. Her mere presence and silence while they
are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was
occupied at the time, or any freight train in motion, if the damage caused in such cases shall
exceed six thousand two hundred and fiftypesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely
arson less serious than what the trial court sentenced him for, inasmuch as that house was the
means of destroying the others, and he did not know whether these were occupied at the time or
not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not
know whether there are people in it at the time, depends upon the danger to which the inmates are
exposed, not less serious is the arson committed by setting fire to inhabited houses by means of
another inhabited house which the firebrand knew to be empty at the moment of committing the act,
if he did not know whether there were people or not in the others, inasmuch as the same danger
exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal
Code, if the information had alleged that at the time of setting fire to the house, the defendant knew
that the other houses were occupied, taking into account that barrio residents are accustomed to
retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere silence and failure to give the alarm, without
evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the
Penal Code for complicity in the commission of the crime witnessed passively, or with regard to
which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing
whether there are people in them or not, sets fire to one known to be vacant at the time, which
results in destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference
to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant
Romana Silvestre, who is hereby acquitted with
one-half of the costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

III. Dolo

A. Cases (on Intent)

1. US v. Apostol, 14 Phil 92 (1909)

EN BANC

G.R. No. 5126 September 2, 1909

THE UNITED STATES, plaintiff-appellee,

vs.
CATALINO APOSTOL, defendant-appellant.

Francisco Ortigas for appellant.

Office of the Solicitor-General Harvey for appellee.

ARELLANO, C.J.:

The judgment entered in this case by the Court of First Instance of Nueva Ecija finds that on the 16th
of December, 1907, five individuals, among them being the accused herein, went to the house
where Pedro Tabilisima, Celestino Vergara, and Tranquilino Manipul were living, and there inquired
after some carabaos that had disappeared, and because these above-mentioned inmates answered
that they knew nothing about the matter, ordered them to leave the house, but as the three men
named above refused to do so the accused Catalino Apostol, set fire to the hut and the same was
burnt down.

In the opinion of the trial court the responsibility of the accused has been fully established by the
testimony of the injured parties. And inasmuch as, according to the same, the act comes within the
provisions of article 549 of the Penal Code, Catalino Apostol was sentenced to sixteen years and
one day of cadena temporal, to the accessories of the law, to indemnify the value of the burnt hut in
the sum of P1, and to pay the costs.

An appeal having been taken to this court, the defense claimed, on behalf of the offender: (1) The
absence of proof of criminal intent; (2) that in view of the fact that the burnt hut was situated in an
uninhabited place, it is not proper to apply article 549, but article 554 of the Penal Code.

Criminal intent as well as the will to commit a crime are always presumed to exist on the part of the
person who executes an act which the law punishes, unless the contrary shall appear. (Art. 1, Penal
Code.)

As to the circumstances connected with the burning of the hut Pedro Tabilisima testified that he and
his friends were in the same; that the accused and his companions arrived at 8 p.m. and questioned
them about carabaos that they said had been stolen from them; that after they replied that they knew
nothing, the former set fire to the house and they jumped out of it; that the witness and two
companions lived in the house; that it was situated in an uninhabited place, surrounded by fields;
that the nearest houses were far away, and cries could not be heard from one house to another; and
that the burnt house was not worth more than P1, because it was a small one, the witness himself
having constructed it.

Celestino Vergara says that several individuals arrived at 8 o'clock at night, asked them for carabaos
that they claimed to have lost, wounded Tranquilino Manipul, who was asleep, and Pedro Tabilisima,
forced them to leave the house, and as they did not want to do so for fear of being assaulted the
accused set fire to the same; they tried to put out the fire as long as they could, but when no longer
able jumped out of the house. The house was in an uninhabited locality, in the fields, the nearest
house being a small store to which the cry of a person night carry, and the neighboring houses could
be seen.

Tranquilino Manipul testified in almost the same terms as this last witness. The argument which the
defense advances, based on article 554, which in connection with 553 punishes the setting fire to a
building intended for habitation, in an uninhabited place, does not apply, because the article question
refers to an edifice intended for human habitation in an uninhabited place at a time when the same is
unoccupied. It is article 549, which punishes with the very severe penalties of cadena
temporal to cadena perpetua "those who shall set fire to any edifice, farmhouse, hut, shed, or vessel
in port, with knowledge that one or more persons were within the same," that must be applied.

The law must be applied as laid down in the above quoted excerpt.

But the court, in view of the nature of the crime and considering the circumstances attending the
same, recognizes the extreme severity of the penalty; therefore we apply the remedy afforded it by
article 2, paragraph 2, of the Penal Code, when a strict application of the provisions of the code
would result in an excessive penalty, taking into consideration the degree of malice and the injury
caused by the crime.

For the reasons above set forth the judgment appealed from is hereby affirmed with costs against
the appellant. Ten days from date let a confirming judgment be entered, and ten days thereafter let
the case be remanded to the lower court of action.

Without prejudice to the immediate execution of the judgment, let the clerk of this court, as provided
in the said article 2 of the Penal Code, respectfully address a communication to the Honorable, the
Governor-General of these Islands, giving the result of this decision and the sentence, requesting
him, should he so desire, to make use of the prerogative with which he is invested in order to reduce
or mitigate the penalty imposed. So ordered.

Torres, Johnson, Carson, and Moreland, JJ., concur.

2. US v. Catolico, 18 Phil 504 (1911)

EN BANC

G.R. No. L-6486 March 2, 1911

THE UNITED STATES, plaintiff-appellee,
vs.
RAFAEL B. CATOLICO, defendant-appellant.

B. Pobre for appellant.

Acting Attorney-General Harvey for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the Province of Cagayan, Hon.
Charles A. Low presiding, convicting the defendant of the crime of malversation of public funds and
sentencing him to two months' imprisonment, to perpetual disqualification to hold public office or
public employment of any kind, and to the payment of the costs.

It appears from the proofs of the prosecution that the accused as justice of the peace of Baggao,
Province of Cagayan, on the 2d day of October, 1909, had before him sixteen separate civil cases
commenced by Juan Canillas against sixteen distinct individuals, each one for damages resulting
from a breach of contract; that said cases were all decided by the appellant in favor of the plaintiff;
that each one of the defendant in said cases appealed from the decision of the justice of the peace
and deposited P16 as required by law, at the same time giving a bond of P50, each one of which
was approved by the court; that on the 12th day of said month the plaintiff in said cases presented a
writing to the appellant as said justice of the peace, alleging that the sureties on the said bonds were
insolvent and later demonstrated this to the satisfaction of the appellant; that thereupon the latter
ordered the cancellation of the said bonds and, in the same order, required each of the appellants to
file another bond within fifteen days, that, inasmuch as none of the appellants in said causes
presented new bonds within the time fixed, the plaintiff in said causes applied to the appellant, as
said court, for an order declaring final the judgment entered in each of the said sixteen cases and
commanding the execution of the same, at the same time asking that the sums deposited by the
defendants in said actions be attached (so called in the record) and delivered to him in satisfaction of
said judgments; that the accused acceded to the petition of the plaintiff, ordered said sums attached
and delivered same to the plaintiff, at the same time requiring of the plaintiff a bond of P50 for each
attachment, conditioned that he would respond for the damages which should result from such
attachment.

After this attachment (so called) the attorney for the defendants in the said sixteen cases presented
a complaint against the appellant to the Court of First Instance, by virtue of which said court ordered
that the plaintiff, Juan Canillas, deliver to the clerk of the Court of First Instance the sums deposited
by the defendants in said actions. Canillas obeyed the order of the court and made the delivery as
required.

Upon these facts the Acting Attorney-General recommends the acquittal of the accused. We are in
entire accord with that recommendation. The case made against the appellant lacks many of the
essential elements required by law to be present in the crime of malversation of public funds. The
accused did not convert the money to his own use or to the use of any other person; neither did he
feloniously permit anybody else to convert it. Everything he did was done in good faith under the
belief that he was acting judicially and correctly. The fact that he ordered the sums, deposited in his
hands by the defendants — appellants in the sixteen actions referred to, attached for the benefit of
the plaintiff in those actions, after the appeals had been dismissed and the judgments in his court
had become final, and that he delivered the said sums to the plaintiff in satisfaction of the judgment
which he held in those cases, can not be considered an appropriation or a taking of said sums within
the meaning of Act No. 1740. He believed that, as presiding officer of the court of justice of the
peace, he had a perfect right under the law to cancel the bonds when it was clearly shown to him
that the sureties thereon were insolvent, to require the filing of new undertakings, giving the parties
ample time within which to do so, to dismiss the appeals in case said undertakings were not filed,
and to declare the judgment final. He believed that after said appeals had been dismissed and said
judgment had become final, the sums deposited were subject to be applied in payment of the
judgments in the actions in which said sums had been deposited and that he was acting judicially
and legally in making such applications.

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied
by a criminal intent, or by such negligence or indifference to duty or to consequences, as, in law, is
equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea — a crime is not
committed if the mind of the person performing the act complained of be innocent.

In the case at bar the appellant was engaged in exercising the functions of a court of justice of the
peace. He had jurisdictions of the actions before him. He had a right and it was his duty to require
the payment by each appellant of P16, as well as the giving of a proper undertaking with solvent
sureties. While, in dismissing the appeals and delivering the P256 to the plaintiff in the said cases,
he may have exceeded his authority as such court and passed beyond the limits of his jurisdiction
and power, a question we do not now discuss or decide, it was, so far as appears from the record, at
most a pure mistake of judgment, an error of the mind operating upon a state of facts. Giving the act
complained of the signification most detrimental to the appellant, it, nevertheless, was simply the
result of the erroneous exercise of the judicial function, and not an intention to deprive any person of
his property feloniously. His act had back of it the purpose to do justice to litigants and not to
embezzle property. He acted that honest debts might be paid to those to whom they were legally
and justly due, and not to enrich himself or another by criminal misappropriation. It was an error
committed by a court, not an act done by a criminal-minded man. It was a mistake, not a crime.

It is true that a presumption of criminal intention may arise from proof of the commission of a criminal
act; and the general rule is that, if it is proved that the accused committed the criminal act charged, it
will be presumed that the act was done with criminal intention, and that it is for the accused to rebut
this presumption. But it must be borne in mind that the act from which such presumption springs
must be a criminal act. In the case before us the act was not criminal. It may have been an error; it
may have been wrong and illegal in the sense that it would have been declared erroneous and set
aside on appeal or other proceeding in the superior court. It may well be that his conduct was
arbitrary to a high degree, to such a degree in fact as properly to subject him to reprimand or even
suspension or removal from office. But, from the facts of record, it was not criminal. As a necessary
result no presumption of criminal intention arises from the act.

Neither can the presumption of a criminal intention arise from the act complained of, even though it
be admitted that the crime, if any, is that of malversation of public funds as defined and penalized in
Act No. 1740. It is true that that Act provides that "In all prosecutions for violations of the preceding
section, the absence of any of the public funds or property of which any person described in said
section has charge, and any failure or inability of such person to produce all the funds and property
properly in his charge on the demand of any officer authorized to examine or inspect such person,
office, treasury, or depositary shall be deemed to be prima facie evidence that such missing funds or
property have been put to personal uses or used for personal ends by such person within the
meaning of the preceding section." Nevertheless, that presumption is a rebuttable one and
constitutes only aprima facie case against the person accused. If he present evidence showing that,
in fact, he has not put said funds or property to personal uses, then that presumption is at an end
and the prima facie case destroyed. In the case at bar it was necessary for the accused to offer any
such evidence, for the reason that the people's own pleading alleged, and its own proofs presented,
along with the criminal charge, facts which showed, of themselves, that said money had not been
put to personal uses or used for personal ends. In other words, the prosecution demonstrated, both
by the allegations in its information filed against the accused and by its proofs on the trial, that the
absence of the funds in question was not due to the personal use thereof by the accused, thus
affirmatively and completely negativing the presumption which, under the act quoted, arises from the
absence of the funds. The presumption was never born. It never existed. The facts which were
presented for the purpose of creating such presumption were accompanied by other facts which
absolutely prevented its creation.

On the other hand, if it be admitted that the crime, if any, is that of estafa, as defined in paragraph 5
of article 535 of the Penal Code, then the presumption just referred to does not arise. Mere absence
of the funds is not sufficient proof of conversion. Neither is the mere failure of the accused to turn
over the funds at any given time sufficient to make even a prima facie case. (U. S. vs. Morales, 15
Phil. Rep., 236; U. S. vs. Dominguez, 2 Phil. Rep., 580.) Conversion must be affirmatively proved,
either by direct evidence or by the production of facts from which conversion necessarily follows. (U.
S. vs. Morales, supra.)

The judgment of conviction is reversed and the defendant ordered discharged from custody
forthwith.

Arellano, C. J., Mapa and Trent, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I am strongly inclined to doubt the bona fides of the defendant in the transactions herein set out, but
in the absence of proof beyond a reasonable doubt upon this point I concur in the judgment of
acquittal of the crime charged in the information.

3. People v. Puno, 219 SCRA 85 (1993)

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias
"Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of
kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information;
or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974),
as contended by the Solicitor General and found by the trial court; or the offense of simple robbery
punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch
103, as Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom
allegedly committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and
within the jurisdiction of this Honorable Court, the said accused, being then private
individuals, conspiring together, confederating with and mutually helping each other,
did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one
MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the
damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the
Civil Code. 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment
promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a
highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO

and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed
on a highway and, in accordance with P.D. 532, they are both sentenced to a jail
term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the offended
private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages
and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them
under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in
applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential
decree is not the offense proved and cannot rightly be used as the offense proved which is
necessarily included in the offense charged. 4

For the material antecedents of this case, we quote with approval the following counter-statement of
facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the
same with page references to the transcripts of the proceedings, and which we note are without any
substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988
by the two accused (tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon

City called Nika Cakes and Pastries. She has a driver of her own just as her husband
does (Ibid., pp. 4-6).
 At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who
is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao
purportedly on account of local election there) arrived at the bakeshop. He told Mrs.
Socorro that her own driver Fred had to go to Pampanga on an emergency
(something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp.
8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the
Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned
right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique
Amurao, boarded the car beside the driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went
onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p.
10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you
know, I want to get money from you." She said she has money inside her bag and
they may get it just so they will let her go. The bag contained P7,000.00 and was
taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to
give them that but would they drop her at her gas station in Kamagong St., Makati
where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma.
Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic)
at her soft bread (sic) brown, perfumed neck. He said he is an NPA and threatened
her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he
is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro
complied. She drafted 3 checks in denominations of two for P30 thousand and one
for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-
23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and
turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out
of the car then, crossed to the other side of the superhighway and, after some
vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress
had blood because, according to Ma. Socorro, she fell down on the ground and was
injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma.
Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6

As observed by the court below, the defense does not dispute said narrative of complainant, except
that, according to appellant Puno, he stopped the car at North Diversion and freely allowed
complainant to step out of the car. He even slowed the car down as he drove away, until he saw that
his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while
running across the highway. 7
Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando,
Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and
divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to
mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been
advanced as to what crime was committed by appellants. The trial court cohered with the
submission of the defense that the crime could not be kidnapping for ransom as charged in the
information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the
crime for which the accused should be held liable in those instances where his acts partake of the
nature of variant offenses, and the same holds true with regard to the modifying or qualifying
circumstances thereof, his motive and specific intent in perpetrating the acts complained of are
invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine
the specific nature of the crime as, for instance, whether a murder was committed in the furtherance
of rebellion in which case the latter absorbs the former, or whether the accused had his own
personal motives for committing the murder independent of his membership in the rebellious
movement in which case rebellion and murder would constitute separate offenses. 10 Also, where
injuries were inflicted on a person in authority who was not then in the actual performance of his official
duties, the motive of the offender assumes importance because if the attack was by reason of the
previous performance of official duties by the person in authority, the crime would be direct assault;
otherwise, it would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to
or at the time they committed the wrongful acts against complainant, other than the extortion of
money from her under the compulsion of threats or intimidation. This much is admitted by both
appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as
already stated, candidly laid the blame for his predicament on his need for funds for, in his own
testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your
family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her
"Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic)
advances from our office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the
victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there
must be indubitable proof that
the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where
such restraint of her freedom of action was merely an incident in the commission of another offense
primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently
reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the
accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them,
holds the offenders liable for taking their lives or such other offenses they committed in relation thereto,
but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal
detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her
personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing
the P7,000.00 to your nephew?
 A Santo Domingo Exit.

Q And how about the checks, where were you already when the
checks was (sic) being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still
did not allow her to stay at Sto. Domingo, after all you already
received the money and the checks?

A Because we had an agreement with her that when she signed the
checks we will take her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde
when she is (sic) already given you the checks?

A Because while we were on the way back I (sic) came to my mind

that if we reach Balintawak or some other place along the way we
might be apprehended by the police. So when we reached Santa Rita
exit I told her "Mam (sic) we will already stop and allow you to get out
of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom,
considering the immediacy of their obtention thereof from the complainant personally. Ransom, in
municipal criminal law, is the money, price or consideration paid or demanded for redemption of a
captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that
when complainant readily gave the cash and checks demanded from her at gun point, what she gave
under the circumstances of this case can be equated with or was in the concept of ransom in the law of
kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a
robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime
committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court
that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No.
532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in
the information that the victim was carried away and extorted for more money. The
accused admitted that the robbery was carried on from Araneta Avenue up to the
North Superhighway. They likewise admitted that along the way they intimidated Ma.
Socorro to produce more money that she had with her at the time for which reason
Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that
punishable under P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974)
under which where robbery on the highway is accompanied by extortion the penalty
is reclusion perpetua. 18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section
5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code,
particularly Article 267 which
are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an
evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the
pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive
pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification
of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles
306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which
treats of "highway robbery" invariably uses this term in the alternative and synonymously with
brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and
which still holds sway in criminal law, that highway robbers (ladrones) and brigands are
synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion
thereon in the proper context and perspective, we find that a band of brigands, also known as
highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter
reveals that during the early part of the American occupation of our country, roving bands were
organized for robbery and pillage and since the then existing law against robbery was inadequate to
cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a
treatise on the subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of
robbers. The heart of the offense consists in the formation of a band by more than
three armed persons for the purpose indicated in art. 306. Such formation is
sufficient to constitute a violation of art. 306. It would not be necessary to show, in a
prosecution under it, that a member or members of the band actually committed
robbery or kidnapping or any other purpose attainable by violent means. The crime is
proven when the organization and purpose of the band are shown to be such as are
contemplated by art 306. On the other hand, if robbery is committed by a band,
whose members were not primarily organized for the purpose of committing robbery
or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply
because robbery was committed by a band of more than three armed persons, it
would not follow that it was committed by a band of brigands. In the Spanish text of
art. 306, it is required that the band "sala a los campos para dedicarse a
robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only
a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed
participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for
the objectives announced therein, could not have been unaware of that distinction and is presumed to
have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the
rule on contemporaneous construction, since it is one drawn from the time when and the circumstances
under which the decree to be construed originated. Contemporaneous exposition or construction is the
best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of
robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine
highways as defined therein, and not acts of robbery committed against only a predetermined or
particular victim, is evident from the preambular clauses thereof, to wit:
 WHEREAS, reports from law-enforcement agencies reveal that lawless elements are
still committing acts of depredation upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation andstunting the economic and social
progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage

which are among the highest forms of lawlessness condemned by the penal statutes
of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from

perpetrating such acts of depredaions by imposing heavy penalty on the offenders,
with the end in view of eliminating all obstacles to the economic, social, educational
and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by
the accused as their specific victim could be considered as committed on the "innocent and
defenseless inhabitants who travel from one place to another," and which single act of depredation
would be capable of "stunting the economic and social progress of the people" as to be considered
"among the highest forms of lawlessness condemned by the penal statutes of all countries," and
would accordingly constitute an obstacle "to the economic, social, educational and community
progress of the people, " such that said isolated act would constitute the highway robbery or
brigandage contemplated and punished in said decree. This would be an exaggeration bordering on
the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised
Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein
when committed on the highways and without prejudice to the liability for such acts if committed.
Furthermore, the decree does not require that there be at least four armed persons forming a band
of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed
firearms no longer obtains under the decree. But, and this we broadly underline, the essence of
brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not
only against specific, intended or preconceived victims, but against any and all prospective victims
anywhere on the highway and whosoever they may potentially be, is the same as the concept of
brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under
its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery
committed by appellants should be covered by the said amendatory decree just because it was
committed on a highway. Aside from what has already been stressed regarding the absence of the
requisite elements which thereby necessarily puts the offense charged outside the purview and
intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any
unlawful taking of property committed on our highways would be covered thereby. It is an
elementary rule of statutory construction that the spirit or intent of the law should not be
subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary
caveat that he who considers merely the letter of an instrument goes but skin deep into its
meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in
case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for
the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if
not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to
a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the
trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities
and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at
gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at
the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree
No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle
which are incidentally being herded along and traversing the same highway and are impulsively set upon
by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit
prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present
case was committed inside a car which, in the natural course of things, was casually operating on a
highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms.
Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have
amply demonstrated, the single act of robbery conceived and committed by appellants in this case
does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article
293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision
correccional in its maximum period to prision mayor in its medium period. Appellants have
indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought
and community of purpose. In the determination of their respective liabilities, the aggravating
circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence
shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them.
At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in
the maximum period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of
simple robbery upon an information charging them with kidnapping for ransom, since the former
offense which has been proved is necessarily included in the latter offense with which they are
charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain,
of personal property through intimidation of the owner or possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information
where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of
the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which,
as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom
from the complainant. Such allegations, if not expressly but at the very least by necessary
implication, clearly convey that the taking of complainant's money and checks (inaccurately termed
as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued
that such a charge of kidnapping for ransom does not include but could negate the presence of any
of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is
rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno
of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal
Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2)
months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and
jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of
P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.
SO ORDERED.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

# Footnotes

* Complainant testified under the name of "Corina Mutuc Sarmiento" but made the
clarification that her baptismal name is "Maria del Socorro Mutuc Sarmiento" (TSN,
January 8, 1990, 4).

1 Original Record, 1.

2 Ibid., 72.

3 Ibid., 137; per Judge Jaime N. Salazar, Jr.

4 Appellant's Brief, 5; Rollo, 47.

5 Brief for the Plaintiff-Appellee; Rollo, 68-84.

6 Ibid., 73-75.

7 TSN, August 13, 1990, 14-15.

8 Ibid., id., 16; September 5, 1990, 18, 25-26.

9 Ibid., id., 11.

10 People vs. Geronimo, 100 Phil. 90 (1956).

11 People vs. Cadag, et al., 2 SCRA 388 (1961).

12 TSN, August, 30, 1990, 11.

13 For this reason, kidnapping and serious illegal detention are jointly provided for in
Article 267 under Chapter One, Title Nine, Book Two of the Revised Penal Code on
Crimes Against Liberty.

14 1 Phil. 165 (1902); see also U.S. vs. De Leon, 1 Phil. 163 (1902).

15 People vs. Remalante, 92 Phil. 48 (1952); People vs. Guerrero, 103 Phil. 1136
(1958); People vs. Ong, et al., 62 SCRA 174 (1975); People vs. Ty Sui Wong, et al.,
83 SCRA 125 (1978); People vs. Jimenez, et al., 105 SCRA 721 (1981).

16 TSN, August 13, 1990, 21-22.

17 Keith vs. State, 120 Fla. 847, 163 So. 136; People vs. Akiran, et al., 18 SCRA
239, 246 (1966).
 18 Original Record, 136.

19 Rollo, 79.

20 U.S. vs. Ibañez, 19 Phil. 463 (1911). Art. 306 of the Code also specifically refers
to them as "highway robbers or brigands."

21 U.S. vs. Carlos, 15 Phil. 47 (1910).

22 Aquino, R.C., The Revised Penal Code, Volume Three, 1989 ed., p. 174, citing
U.S. vs. Decusin, 2 Phil. 536 (1903) and U.S. vs. Maaño, 2 Phil. 718 (1903).

23 U.S. vs. Feliciano, 3 Phil. 422 (1904).

24 Contemporanea expositio est optima et fortissima in lege (2 Inst. 11; Black's Law
Dictionary, Fourth Edition, 390).

25 Act 518, as amended by Act 2036.

26 Qui haeret in litera haeret in cortice (Co. Litt. 289; Broom, Max. 685; Black's Law
Dictionary, Fourth Edition, 1413).

27 Republic Act No. 6539.

28 Presidential Decree No. 533.

29 People vs. San Pedro, 95 SCRA 306 (1980); People vs. Masilang, 142 SCRA 673
(1986).

30 Section 4, Rule 120, 1985 Rules of Criminal Procedure.

31 U.S. vs. San Pedro, 4 Phil. 405 (1905); U.S. vs. alabot, 38 Phil. 698 (1918).

32 See Section 5, Rule 120, 1985 Rules of Criminal Procedure.

4. People v. Delim, 396 SCRA 386 (2003)

EN BANC

G.R. No. 142773 January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARLON DELIM, LEON DELIM, MANUEL DELIM alias "BONG" (At Large), ROBERT DELIM (At
Large), and RONALD DELIM alias "BONG", accused-appellants.

CALLEJO, SR., J.:

Before the Court on automatic review is the Decision,1 dated January 14, 2000, of the Regional Trial
Court, Branch 46, Urdaneta City, finding accused appellants Marlon Delim, Leon Delim and Ronald
Delim guilty beyond reasonable doubt of the crime of murder and sentencing them to suffer the
supreme penalty of death. The court also ordered accused-appellants to pay, jointly and severally,
the heirs of the victim the sums of P75,000.00 as moral damages and P25,000.00 as exemplary
damages.

Accused-appellants Marlon, Ronald and Leon, together with Manuel alias "Bong" and Robert, all
surnamed Delim, were indicted for murder under an Information dated May 4, 1999 which reads:

"That on or about January 23, 1999, in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused, armed with short
firearms barged-in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premedidation (sic), conspiring with one another, did then and there,
wilfully, unlawfully and feloniously grab, hold, hogtie, gag with a piece of cloth, brought out
and abduct Modesto Delim, accused Leon Delim and Manuel Delim stayed in the house
guarded and prevented the wife and son of Modesto Delim from helping the latter, thereafter
with abuse of superior strength stabbed and killed said Modesto Delim, to the damage and
prejudice of his heirs.

CONTRARY to Article 248 of the Revised Penal Code, as amended by Republic Act No.
7659."2

Only accused-appellants Marlon (Bongbong), Leon and Ronald, all surnamed Delim, were
apprehended. Accused Robert and Manuel remain at-large.

At their arraignment, Marlon, Ronald and Leon, with the assistance of their counsel, pleaded not
guilty to the charge.

At the trial, the prosecution established the following relevant facts3 —

Marlon, Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald
Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname
Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife,
Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their
surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their
relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit
Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison,
Pangasinan.

On January 23, 1999, at around 6:30 in the evening, Modesto, Rita and Randy were preparing to
have their supper in their home. Joining them were Modesto and Rita's two young grandchildren,
aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald
suddenly barged into the house and closed the door. Each of the three intruders was armed with a
short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed
and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto. 4 Marlon, Robert and
Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison,
Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and
Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto
and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto
only at around 7:00 a.m. the following day, January 24, 1999.
As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio
Labayog, informed the latter of the incident the night before and sought his help for the retrieval of
Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to
first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail.
They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to
locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to
the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there.
On January 26, 1999, Randy reported the incident to the police authorities.

At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida
Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit,
Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was
already dead. The cadaver was bloated and in the state of decomposition. It exuded a bad odor.
Tiny white worms swarmed over and feasted on the cadaver. Randy and his relatives immediately
rushed to the police station to report the incident and to seek assistance.

When informed of the discovery of Modesto's cadaver, the local chief of police and SPO2 Jovencio
Fajarito and other policemen rushed to the scene and saw the cadaver under the thick bushes.
Pictures were taken of the cadaver.5 Rita and Randy divulged to the police investigators the names
and addresses of Marlon, Ronald, Robert, Leon and Manuel, whom they claimed were responsible
for the death of Modesto. Rita and Randy were at a loss why the five malefactors seized Modesto
and killed him. Rita and Randy gave their respective sworn statements to the police
investigators.6 Police authorities proceeded to arrest Marlon, Ronald, Robert, Manuel and Leon but
failed to find them in their respective houses. The police officers scoured the mountainous parts of
Barangays Immalog and Labayog to no avail.

The cadaver was autopsied by Dr. Maria Fe L. De Guzman who prepared her autopsy report, which
reads:

"SIGNIFICANT EXTERNAL FINDINGS:

 Body  both upper extremities are flexed
 both lower extremities are flexed
 (+) body decomposition
 (+) worms coming out from injuries
 10 x 10 ml. GSW, pre-auricular area, right
 20 x 20 ml. GSW, mandibular areas, right
 10 x 10 ml. GSW, maxillary area, right
 10 x 10 ml. GSW, below middle nose, directed upward (POE)
 30 x 40 ml. GSW, mid parieto — occipital area (POEx)
 2 x 1 cms. lacerated wound, right cheek
 1 x 1 cm. stabbed wound, axillary area, left
 1 x 1 cm. stabbed wound, lateral aspect M/3rd left arm
 1 x 1 cm. stabbed wound, lateral aspect D/3rd, left arm
 1 x 1 cm. stabbed wound, medial aspect M/3rd, left arm
 1 x 1 cm. stabbed wound medial aspect D/3rd, left arm
  #3; 1 x 1 cm. in line with each other, stabbed would, medial aspect, M/3rd, left
forearm
 1 x 1 cm. stabbed wound, medial aspect, D/3rd, left forearm
 10 x 6 cms. Inflamed scrotum
 penis inflamed
SIGNIFICANT INTERNAL FINDINGS:
 no significant internal findings
CAUSE OF DEATH:
 GUN SHOT WOUND, HEAD."7

The stab wounds sustained by Modesto on his left arm and forearm were defensive wounds. The
police investigators were able to confirm that Marlon, Ronald, Robert, Leon and Manuel had no
licenses for their firearms.8

Records of the PNP Criminal Investigation and Detection Group in Baguio City show that Marlon had
pending cases for robbery in the Regional Trial Court of Baguio City in Criminal Case No. 16193-R,
and for robbery in band in Criminal Cases Nos. 9801 and 9802 pending with the Regional Trial Court
in Urdaneta, Pangasinan.9

To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. 10

Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and
sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from
Modesto's house.

He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing
him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier
who allegedly had a quarrel with him concerning politics.

Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita
Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after
leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a
hollow-block factory in that city where he was a stay-in worker.

Sally Asuncion corroborated Leon's alibi. She testified that Leon Delim never went home to his
hometown in Pangasinan during his employment. His sister, Hermelita Estabillo, likewise averred
that on January 23, 1999, his brother was at her house to give her his laundry. She claimed that the
distance between Laoag City and Bila, Sison, Pangasinan can be traversed in six hours by bus.
Leon presented a Barangay Certificate to prove that he was a resident of Laoag City from January
1998 up to February 1999.11

Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January
29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila
on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting
foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City.

The trial court rendered judgment finding accused-appellants guilty of murder. The dispositive
portion of the trial court's decision reads:
 "WHEREFORE, JUDGMENT OF CONVICTION beyond reasonable doubt is hereby
rendered against Ronald Delim, Marlon Delim and Leon Delim (for) the commission of
Aggravated Murder, an offense defined and penalized under Article 248 of the Revised
Penal Code, as amended by R.A. 7659 and the Court sentences Marlon Delim, Ronald
Delim and Leon Delim to suffer the penalty of DEATH, to be implemented in the manner as
provided for by law; the Court likewise orders the accused, jointly and solidarily, to indemnify
the heirs of Modesto Delim the sum of P75,000.00 as moral damages, plus the amount of
P25,000.00 as exemplary damages.

The Branch Clerk of Court is hereby ordered to transmit the entire records of this case to the
Honorable Supreme Court, and to prepare the mittimus fifteen (15) days from date of
promulgation.

The Jail Warden, Bureau of Jail Management and Penology, Urdaneta District Jail, Urdaneta
City is hereby ordered to transmit the persons of Marlon, Ronald and Leon, all surnamed
Delim to the New Bilibid Prisons, Muntinlupa City, fifteen days from receipt of this decision.

SO ORDERED."12

The trial court appreciated treachery as a qualifying circumstance and of taking advantage of
superior strength, nighttime and use of unlicensed firearms as separate of aggravating
circumstances in the commission of the crime. Marlon, Ronald and Leon, in their appeal brief, assail
the decision alleging that:

"I

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANTS GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER.

II

THE COURT A QUO GRAVELY ERRED IN FINDING THAT CONSPIRACY EXISTED IN THE
CASE AT BAR.

III

THE COURT A QUO GRAVELY ERRED IN NOT GIVING WEIGHT AND CREDENCE TO
ACCUSED-APPELLANTS' DEFENSE OF ALIBI."13

Before resolving the merits of the case at bar, we first resolve the matter of whether the crime
charged in the Information is murder or kidnapping. During the deliberation, some distinguished
members of the Court opined that under the Information, Marlon, Ronald and Leon are charged with
kidnapping under Article 267 of the Revised Penal Code and not with murder in its aggravated form
in light of the allegation therein that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter." They submit that the foregoing allegation constitutes the act
of deprivation of liberty of the victim, the gravamen in the crime of kidnapping. They contend that the
fact that the Information went further to charge accused with the killing of the victim should be of no
moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information.
They further submit that since the prosecution failed to prove motive on the part of Marlon, Ronald
and Leon to kill Modesto, they are not criminally liable for the death of the victim but only for
kidnapping the victim.

It bears stressing that in determining what crime is charged in an information, the material
inculpatory facts recited therein describing the crime charged in relation to the penal law violated are
controlling. Where the specific intent of the malefactor is determinative of the crime charged such
specific intent must be alleged in the information and proved by the prosecution. A decade ago, this
Court held in People v. Isabelo Puno, et al.,14 that for kidnapping to exist, there must be indubitable
proof that the actual specific intent of the malefactor is to deprive the offended party of his liberty and
not where such restraint of his freedom of action is merely an incident in the commission of another
offense primarily intended by the malefactor. This Court further held:

"x x x Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it
has been held that the detention and/or forcible taking away of the victims by the accused,
even for an appreciable period of time but for the primary and ultimate purpose of killing
them, holds the offenders liable for taking their lives or such other offenses they committed in
relation thereto, but the incidental deprivation of the victims' liberty does not constitute
kidnapping or serious illegal detention."15

If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of
the victim's liberty does not constitute the felony of kidnapping but is merely a preparatory act to the
killing, and hence, is merged into, or absorbed by, the killing of the victim. 16 The crime committed
would either be homicide or murder.

What is primordial then is the specific intent of the malefactors as disclosed in the information or
criminal complaint that is determinative of what crime the accused is charged with — that of murder
or kidnapping.

Philippine and American penal laws have a common thread on the concept of specific intent as an
essential element of specific intent crimes. Specific intent is used to describe a state of mind which
exists where circumstances indicate that an offender actively desired certain criminal consequences
or objectively desired a specific result to follow his act or failure to act. 17 Specific intent involves a
state of the mind. It is the particular purpose or specific intention in doing the prohibited act. Specific
intent must be alleged in the Information and proved by the state in a prosecution for a crime
requiring specific intent.18 Kidnapping and murder are specific intent crimes.

Specific intent may be proved by direct evidence or by circumstantial evidence. It may be inferred
from the circumstances of the actions of the accused as established by the evidence on record. 19

Specific intent is not synonymous with motive. Motive generally is referred to as the reason which
prompts the accused to engage in a particular criminal activity. Motive is not an essential element of
a crime and hence the prosecution need not prove the same. As a general rule, proof of motive for
the commission of the offense charged does not show guilt and absence of proof of such motive
does not establish the innocence of accused for the crime charged such as murder. 20 The history of
crimes shows that murders are generally committed from motives comparatively trivial. 21 Crime is
rarely rational. In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to
deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be
convicted for kidnapping.22 In kidnapping for ransom, the motive is ransom. Where accused kills the
victim to avenge the death of a loved one, the motive is revenge.
In this case, it is evident on the face of the Information that the specific intent of the malefactors in
barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the
attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely
incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the
information that the primary intent of the malefactors was to deprive Modesto of his freedom or
liberty and that killing him was merely incidental to kidnapping.23Irrefragably then, the crime charged
in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under
Article 268 thereof.

The threshold issue that now comes to fore is whether or not the prosecution mustered the requisite
quantum of evidence to prove that Marlon, Ronald and Leon are guilty of murder.

In criminal prosecutions, the prosecution is burdened to prove the guilt of the accused beyond cavil
of doubt. The prosecution must rely on the strength of its own evidence and not on the weakness of
the evidence of the accused. The proof against the accused must survive the test of reason; the
strongest suspicion must not be permitted to sway judgment.24

In the case at bar, the prosecution was burdened to prove the corpus delicti which consists of two
things: first, the criminal act and second, defendant's agency in the commission of the act. 25 Wharton
says that corpus delictiincludes two things: first, the objective; second, the subjective element of
crimes.26 In homicide (by dolo) and in murder cases, the prosecution is burdened to prove: (a) the
death of the party alleged to be dead; (b) that the death was produced by the criminal act of some
other than the deceased and was not the result of accident, natural cause or suicide; and (c) that
defendant committed the criminal act or was in some way criminally responsible for the act which
produced the death.27 To prove the felony of homicide or murder, there must be incontrovertible
evidence, direct or circumstantial, that the victim was deliberately killed (with malice); in other words,
that there was intent to kill. Such evidence may consist inter alia in the use of weapons by the
malefactors, the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the victim. If the
victim dies because of a deliberate act of the malefactor, intent to kill is conclusively presumed.

The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct
evidence or by circumstantial or presumptive evidence.28

In the case at bar, the prosecution adduced the requisite quantum of proof of corpus delicti. Modesto
sustained five (5) gunshot wounds. He also sustained seven (7) stab wounds,29 defensive in nature.
The use by the malefactors of deadly weapons, more specifically handguns and knives, in the killing
of the victim as well as the nature, number and location of the wounds sustained by said victim are
evidence of the intent by the malefactors to kill the victim with all the consequences flowing
therefrom.30 As the State Supreme Court of Wisconsin held inCupps v. State:31

"This rule, that every person is presumed to contemplate the ordinary and natural
consequences of his own acts, is applied even in capital cases. Because men generally act
deliberately and by the determination of their own will, and not from the impulse of blind
passion, the law presumes that every man always thus acts, until the contrary appears.
Therefore, when one man is found to have killed another, if the circumstances of the
homicide do not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and the burden of
proof is on him to show that it was otherwise."

The prosecution did not present direct evidence to prove the authors of the killing of Modesto. It
relied on circumstantial evidence to discharge its burden of proving the guilt of accused-appellants of
murder. Circumstantial evidence consists of proof of collateral facts and circumstances from which
the existence of the main fact may be inferred according to reason and common experience. 32 What
was once a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised
Rules of Evidence which states that circumstantial evidence, sometimes referred to as indirect or
presumptive evidence, is sufficient as anchor for a judgment of conviction if the following requisites
concur:

"x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived have been established; and (c) the combination of all the circumstances is such as to
warrant a finding of guilt beyond reasonable doubt."33

The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of accused for the
offense charged.34 For circumstantial evidence to be sufficient to support a conviction, all the
circumstances must be consistent with each other, consistent with the hypothesis that accused is
guilty and at the same time inconsistent with the hypothesis that he is innocent, and with every other
rational hypothesis except that of guilt.35 If the prosecution adduced the requisite circumstantial
evidence to prove the guilt of accused beyond reasonable doubt, the burden of evidence shifts to the
accused to controvert the evidence of the prosecution.

In the present case, the prosecution mustered the requisite quantum of circumstantial evidence to
prove that accused-appellants, in confabulation with their co-accused, conspired to kill and did kill
Modesto:

1. Randy Bantas testified that Marlon and Ronald barged into the house of Modesto, each armed
with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied Modesto. They then
seized Modesto and herded him out of his house:

"FISCAL TOMBOC: What were you doing then at that time in your house?

A We were eating, sir.

Q You said we, who were your companions eating then at that time?

A My father, my mother and the two children and myself, sir.

Q While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

A When we were about to start to eat three armed men entered our house.

Q Do you know these three armed men who entered your house?

A Yes, sir.

Q Who are they, name them one by one?

A Marlon Delim, Robert Delim and Ronald Delim.

Q Are these three persons inside the courtroom now?

A Two of them, sir.

Q Who are these two who are inside the courtroom?

A Marlon and Ronald, sir.

Q Will you please stand up and point to them?

A (Witness is pointing to a person seated on the bench inside the courtroom, who, when
his name was asked answered Marlon Delim. Likewise, witness is pointing unto a person
seated on the bench inside the courtroom, who, when his name was asked he answered
Ronald Delim).

Q You said that these two armed persons entered your house, what kind of arm were
they carrying at that time?

A Short handgun, sir.

Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do then when they entered your house?

A They took my father, sir.

Q Who took your father?

A Marlon Delim, Robert Delim and Ronald Delim, sir.

Q When these three persons took your father, what did you do then?

A None, sir.

COURT: How did they get your father?

A They poked a gun and brought him outside the house, sir.

FISCAL TOMBOC: Who poked a gun?

A Marlon Delim, sir.

Q Again, Mr. Witness, will you point to the person who poked a gun?

A (Witness is pointing to Malon (sic) Delim, one of the accused).

Q After bringing your father out from your house, what transpired next?

A Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

COURT: You said your father was taken out, who?

A Marlon, Robert and Ronald, sir.

 FISCAL TOMBOC: Where did these three persons bring your father?

A I do not know where they brought my father, sir.

COURT: Was your father taken inside your house or outside?

A Inside our house, sir.

Q You said that Marlon poked a gun at your father, is that correct?

A Yes, sir.

Q What did Ronald and Robert do while Marlon was poking his gun to your father?

A Ronald and Robert were the ones who pulled my father out, sir." 36

Randy's account of the incident was corroborated by his mother, Rita, who testified:

"PROSECUTION TOMBOC: You said during the last hearing that on January 23, 1999 at
around 6:30 in the evening while preparing for your supper three (3) armed men entered
inside your house, who were these three (3) men who entered your house?

A I know, Marlon, Bongbong and Robert, sir.

ATTY. FLORENDO: We just make of record that the witness is taking her time to answer,
Your Honor.

PROSECUTOR TOMBOC: You said that Marlon Delim, Robert Delim and Bongbong entered
your house, are these three (3) persons who entered your house in Court now?

A They are here except the other one, sir.

Q Will you please step down and point to the persons who entered your house?

A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

Q After these three (3) armed men entered your house, what happened then?

A My husband was brought out, sir.

Q What is the name of your husband?

A Modesto Delim, sir."37

2. Randy said that when Marlon and Ronald barged into their house, Leon, armed with a handgun,
acted as a lookout when he stood guard by the door of the house of Modesto and remained thereat
until 7:00 a.m. of the next day:
 "FISCAL TOMBOC: When your father was pulled out from your house by these three
persons, what did you and your mother do while these three persons were taking out of your
house?

A We did not do anything because Manuel and Leon Delim guarded us.

COURT: Where, in your house?

A Yes, sir.

FISCAL TOMBOC: From that very time that your father was pulled out by these three
persons Marlon, Robert and Ronal (sic), where were Leon and Manuel then?

A They were at the door, sir.

COURT: Why do you know that they were guarding you?

A Because they were at the door, sir.

FISCAL TOMBOC: What was their appearance that time when these two persons were
guarding you, these Leon and Manuel?

A They were armed, sir.

Q What do you mean by armed?

A They have gun, sir.

Q What kind of firearm?

A Short firearm, sir.

Q By the way, where are these Leon and Manuel now, if you know?

A Leon is here, sir.

Q About Manuel?

A None, sir.

Q Will you please stand up and point at Leon, Mr. Witness?

A (Witness pointed to a person seated on the bench inside the courtroom, who when
his name was asked, answered, Leon Delim)."38

3. Rita and Randy were ordered by Leon not to leave the house as Ronald and Marlon left the house
with Modesto in tow. Rita and Randy were detained in their house up to 7:00 a.m. of January 24,
1999 to prevent them from seeking help from their relatives and police authorities.
4. Randy likewise testified that on January 27, 1999, at about 3:00 p.m., the cadaver of Modesto was
found under the thick bushes in a grassy area in the housing project located about 200 meters away
from the house of Modesto. The cadaver exuded bad odor and was already in the state of
decomposition:

"Q So what did you do then on January 27, where did you look for your father?

A The same place and at 3:00 o'clock P.M., we were able to find my father.

COURT: Where?

A At the housing project at Paldit, Sison, Pangasinan, sir.

FISCAL TOMBOC: Do you have companions at that time when you were able to look for
your father on January 27, 1999 at 3:00 o'clock P.M.?

A Yes, sir.

Q Who?

A My Aunt, sir.

Q What is the name of your Aunt?

A Nida Pucal, sir.

Q Who else?

A Pepito Pucal, Bernard Osias and Daniel Delim, sir.

COURT: When you found your father, what was his condition?

A He was dead, sir.

COURT: Go ahead.

FISCAL TOMBOC: You said that he was already dead, what was his appearance then when
you saw him dead?

A He has bad odor, sir, in the state of decompsition (sic)."39

The testimony of Randy was corroborated by Dr. de Guzman who testified that the cadaver of
Modesto was in a state of decomposition, with tiny white worms crawling from his wounds, and that
his penis and scrotum were inflamed. The victim sustained five gunshot wounds and defensive
wounds on the left arm and forearm:

"PROS. TOMBOC:

Q Will you please tell the Honorable Court your findings, Doctora?
WITNESS:

A First finding: Upon seeing the cadaver, this is the position of the body, both upper
extremities are flexed and both lower extremities are flexed (Nakakukot).

Q How many days had already elapsed when you autopsied the cadaver of the victim,
Doctora?

A Four (4) days upon the recovery of the body, sir.

Q And what was your findings Doctora?

A The body was already under the state of decomposition, sir, with foul odor and there
were so many worms coming out from the injuries, there were tiny white worms, sir.

Q What else did you observe Doctora?

A Upon seeing the cadaver I asked the relative to refer it to the NBI sir. Actually the
victim was an igorot (sic) and they have tradition that they will bury immediately. Whether
they like it or not I should do it, sir.

Q What else Doctora?

A And the penis was inflammed (sic), the scrotum was also inflammed (sic), sir.

And for the head injuries there was 10 x 10 ml. GSW pre-auricular area, right; there was also
20 ml x 20 ml. GSW, mandibular area, right; I cannot also determine the exit.

Q So there were two (2) gunshot wounds (GSW) Doctora?

A Yes sir.

And there was also 10 x 10 ml. GSW, maxillary area, right; there was also 10 x 10 ml. GSW,
below middle nose, directed upward (POE); and there was also 30 x 40 ml. GSW, mid
parieto-occipital area (POEx).

Q How many all in all are the gunshot wound?

A Five (5) sir.

And also there was 2 x 1 cms. Lacerated wound, right cheek; 1 x 1 cm. stabbed
wound, axillary area, left; 1 x 1 cm. stabbed wound, lateral aspect M/3rd, left arm; 1 x
1 cm. stabbed wound lateral aspect D/3rd, left arm; 1 x 1 cm. stabbed wound, medial
aspect M/3rd, left arm; 1 x 1 cm. stabbed wound, medial aspect D/3rd, left arm; and
#3; 1 x 1 cm. in line with each other, stabbed wound, medial aspect, M/3rd, left
forearm.

Q How many stabbed wound are there Doctora?

A There were seven (7) stabbed wounds, sir.

 Q Those stabbed wounds were defensive wounds, Doctora?

A Yes sir."40

The state of decomposition of the cadaver, with tiny white worms swarming and feasting on it and
the distention of his scrotum and penis are evidence that the cadaver was in the stage of
putrefaction and that the victim had been dead for a period ranging from three to six
days.41 Admittedly, there are variant factors determinative of the exact death of the victim. An equally
persuasive authority states:

"Chronological Sequence of Putrefactive Changes Occurring in Tropical

Region:
Time Since Condition of the Body
Death
48 hours Ova of flies seen. Trunk bloated. Face discolored and
swollen. Blisters present. Moving maggots seen
72 hours Whole body grossly swollen and disfigured. Hair and nails
loose. Tissues soft and discolored."42

The lapse of two or three to four days from the seizure of the victim in the evening of January 23,
1999 to the discovery of his cadaver which was already in the state of putrefaction in the afternoon
of January 27, 1999, about 200 meters away from his house, is consistent with and confirmatory of
the contention of the prosecution that the victim was killed precisely by the very malefactors who
seized him on January 23, 1999.

5. When police authorities went to the residences of all the malefactors, the latter had flown the coop
and were nowhere to be found:

"COURT: In connection with this case, you investigated the wife and son of Modesto Delim?

A Yes, sir.

Q In the course of the investigation did you come to know who were the suspects?

A Yes, sir, she elaborated that the suspects were their neighbors, Marlon Delim and his
brothers, sir.

Q What are the names of the brothers?

A Manuel Delim, Leon Delim I cannot remember the others, sir.

Q By reason of that information were you able to apprehend any of them for
investigation?

A No, sir.

Q Why?
 A Because when we were dispatched by the Chief of Police no Delim brothers could be
found, they all left the place, sir.

Q In what place did you look for the brothers Delim?

A Within the vicinity, sir.

Q In what place?

A Brgy. Bila and the place where the crime was committed in Brgy. Bila and the place
where the cadaver was found in Paldit, sir.

Q Where did you look for the Delim brothers?

A Nearby barangays, Immalog, sir.

Q Wherelse (sic)?

A Labayog, Sison, sir.

Q Wherelse?

A In mountainous part of Immalog, part of Tuba Benguet, sir.

Q What was the result?

A Negative result, sir."43

6. Leon was the neighbor of Modesto and Rita while Marlon and Ronald used to go to the house of
Modesto and Rita:

"COURT: These Leon and Manuel Delim are they known to you prior to that day, January
23, 1999?

A Yes, sir, I know them.

Q Why do you know Manuel and Leon prior to January 23, 1999?

A They are my neighbors, sir.

Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

A I know them, sir.

Q Why do you know them?

A They used to go to our house, sir.

 Q I noticed that Marlon, Bongbong, Robert, Manuel and Leon are all Delims and your
husband's name is Modesto Delim are they related with each other?

A Yes, sir."44

The sudden disappearance of Marlon, Ronald and Leon from their houses in Barangay Bila, Sison is
strong circumstantial evidence of their guilt for the death of Modesto. Although flight after the
commission of an offense does not create a legal presumption of guilt, nevertheless, the same is
admissible in evidence against them and if not satisfactorily explained in a manner consistent with
their innocence, will tend to show that they, in fact, killed Modesto. 45

It is true that the prosecution failed to prove motive on the part of the malefactors to abduct and kill
Modesto. Indeed, Randy and Rita testified that they were not aware of any misunderstanding or
grudge between Modesto on the one hand and Marlon, Ronald and Leon and their co-accused on
the other before the incident, or any motivation on the part of the three malefactors to cause harm to
Modesto. Nonetheless, it cannot thereby be concluded that a person or persons other than Marlon,
Ronald and Leon were criminally responsible for the death of the victim. It is a matter of judicial
notice that nowadays persons have killed or committed serious crimes for no reason at all. 46 In this
case, the inscrutable facts are that Marlon and Ronald, each of whom was armed with a handgun,
forcibly took Modesto from his house at the gunpoint, hog-tied, put a piece of cloth in his mouth and
after Ronald and Marlon had left the house with Modesto in tow, Rita heard three gunshots or so and
the cadaver of Modesto was found concealed under the bushes and already in a state of
putrefaction in the afternoon of January 27, 1999. Modesto sustained several gunshot wounds and
died because of a gunshot wound on the head. The criminal acts and the connection of Marlon,
Ronald and Leon with said acts having been proved by the prosecution beyond reasonable doubt,
the act itself furnishes the evidence, that to its perpetration there was some causes or influences
moving the mind.47 The remarkable tapestry intricately woven by the prosecution should not be
trashed simply because the malefactors had no motive to kill Modesto.

Ranged against the evidence of the prosecution, the burden of evidence shifted on Marlon, Ronald
and Leon to rebut the same and explain what happened to the victim after taking him from his house
in the evening of January 23, 1999. They may have freed the victim shortly after taking him, or the
victim may have been able to escape and that thereafter a person or some other persons may have
killed him. However, Marlon, Ronald and Leon failed to give any explanation. Instead, they merely
denied having seized and killed the victim and interposed alibi as their defense.

Leon is equally guilty for the death of Modesto because the evidence on record shows that he
conspired with accused-appellants Marlon and Ronald and accused Robert and Manuel in killing the
victim.

There is conspiracy when two or more persons agree to commit a felony and decide to commit
it.48 Conspiracy must be proven with the same quantum of evidence as the felony itself, more
specifically by proof beyond reasonable doubt. Conspiracy is not presumed. It may be proved by
direct evidence or by circumstantial evidence. Conspiracy is deducible from the acts of the
malefactors before, during and after the commission of the crime which are indicative of a joint
purpose, concerted action and concurrence of sentiment.49 To establish conspiracy, it is not essential
that there be proof as to the existence of a previous agreement to commit a crime. 50It is sufficient if,
at the time of the commission of the crime, the accused had the same purpose and were united in its
execution. If conspiracy is established, the act of one is deemed the act of all. It matters not who
among the accused actually shot and killed the victim.51 This is based on the theory of a joint or
mutual agency ad hoc for the prosecution of the common plan:
 "x x x The acts and declarations of an agent, within the scope of his authority, are considered
and treated as the acts and declarations of his principal. 'What is so done by an agent, is
done by the principal, through him, as his mere instrument.' Franklin Bank of Baltimore v.
Pennsylvania D. & M. Steam Navigation Co., 11 G. & J. 28, 33 (1839). 'If the conspiracy be
proved to have existed, or rather if evidence be given to the jury of its existence, the acts of
one in furtherance of the common design are the acts of all; and whatever one does in
furtherance of the common design, he does as the agent of the co-conspirators.' R. v.
O'Connell, 5 St.Tr. (N.S.) 1, 710."52

In the eyes of the law, conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declaration of each, while in the
pursuit of the common design, are the acts, words and declarations of all. 53

In the case at bar, Marlon, Ronald and Leon arrived together in the house of Modesto, each armed
with a handgun. Marlon and Ronald barged into said house while Leon stood guard by the door
thereof. After Marlon and Ronald had left with Modesto in tow, Leon stood by the door and warned
Randy and Rita not to leave the house. Leon stood guard by the door of the house until 7:00 a.m. of
January 24, 1999 when he left the house. The overt acts of all the malefactors were so synchronized
and executed with precision evincing a preconceived plan or design of all the malefactors to achieve
a common purpose, namely the killing of Modesto. Irrefragably, the tasks assigned to Leon in the
commission of the crime were — (a) to act as a lookout; (b) to ensure that Rita and Randy remain in
their house to prevent them from seeking assistance from police authorities and their relatives before
their mission to kill Modesto shall have been a fait accompli as well as the escape of Marlon and
Ronald.54 Patently, Leon, a lookout for the group, is guilty of the killing of Modesto. 55 Leon may not
have been at the situs criminis when Modesto was killed by Marlon and Ronald nevertheless he is a
principal by direct participation.56 If part of a crime has been committed in one place and part in
another, each person concerned in the commission of either part is liable as principal. No matter
how wide may be the separation of the conspirators, if they are all engaged in a common plan for the
execution of a felony and all take their part in furtherance of the common design, all are liable as
principals. Actual presence is not necessary if there is a direct connection between the actor and the
crime.57

Ronald, Marlon and Leon, however, assail the testimonies of Randy and Rita alleging that the same
were marred by inconsistencies.

1. Randy initially stated that he did not know where the assailants brought his father. Later
however, Randy claimed that the malefactors proceeded to the direction of Paldit, Sison,
Pangasinan;

2. Rita on the other hand identified Leon, Marlon and Ronald as those who barged into their
house. She later changed her testimony and declared that it was Robert, together with
Marlon and Ronald who barged into the house;

3. Rita likewise testified that two men stood outside the house guarding them. Later, she
testified that after the three men brought out the victim, the two other accused entered the
house and guarded them there;

4. Rita claimed that she went out to look for her husband the next day, or on January 25,
1999, and she was accompanied by her son Randy. However, Randy testified that he was
alone when he looked for his father from January 24 to 26, 1999. 58
We do not agree with Marlon, Ronald and Leon. Case law has it that the findings of facts of the trial
court, its calibration of the collective testimonies of witnesses and its assessment of the probative
weight thereof and its conclusions culled from its findings are accorded by the appellate court great
respect, if not conclusive effect, because of its unique advantage of observing at close range the
demeanor, deportment and conduct of the witnesses as they give their testimonies before the court.

In the present case, the trial court gave credence and full probative weight to the testimonies of the
witnesses of the prosecution. Moreover, there is no evidence on record that Randy and Rita were
moved by any improper or ill motive in testifying against the malefactors and the other accused;
hence, their testimonies must be given full credit and probative weight.59 The inconsistencies in the
testimonies of Rita and Randy do not render them incredible or their testimonies barren of probative
weight. It must be borne in mind that human memory is not as unerring as a photograph and a
person's sense of observation is impaired by many factors including the shocking effect of a crime. A
truth-telling witness is not always expected to give an error-free testimony considering the lapse of
time and the treachery of human memory. What is primordial is that the mass of testimony jibes on
material points, the slight clashing of statements dilute neither the witnesses' credibility nor the
veracity of his testimony.60 Variations on the testimony of witnesses on the same side with respect to
minor, collateral or incidental matters do not impair the weight of their united testimony to the
prominent facts.61 Inconsistencies on minor and trivial matters only serve to strengthen rather than
weaken the credibility of witnesses for they erase the suspicion of rehearsed testimony. 62

Moreover, the testimony of a witness should be construed in its entirety and not in truncated terms
and the true meaning of answers to isolated questions propounded to a witness is to be ascertained
by due consideration of all the questions propounded to the witness and his answers thereto. 63

Randy's testimony that he did know where the malefactors brought his father is not inconsistent with
his testimony that Ronald and Marlon brought his father towards the direction of Paldit, Sison,
Pangasinan. Randy may not have known the destination of accused-appellants but he saw the
direction to which they went. While it may be true that when asked to identify the three who barged
into their house, Rita pointed to Leon as one of them, however, Rita had been consistent throughout
her testimony that those who barged into their house were Ronald and Marlon. Leon's counsel never
cross-examined Rita and impeached her testimony on her identification of Leon as one of those who
barged into their house to give her an opportunity to explain her perceived inconsistency
conformably with Rule 132, Section 13, of the Revised Rules of Evidence which reads:

"Before a witness can be impeached by evidence that he has made at other times
statements inconsistent with his present testimony, the statements must be related to him,
with the circumstances of the times and places and the persons present, and he must be
asked whether he made such statements, and if so, allowed to explain them. If the
statements be in writing they must be shown to the witness before any question is put to him
concerning them."64

Hence, the presentation of the inconsistent statements made by Rita is insufficient for the desired
impeachment of her.65 As to whether Rita and Randy were together in looking for Modesto or Leon
merely stood guard by the door of the house or entered the house are inconsequential. The fact is
that Leon stood guard throughout the night to prevent Rita and Randy from seeking assistance for
the seizure and killing of Modesto.

This Court is convinced, as the trial court was, that the respective testimonies of Randy and Rita
bear the earmarks of truth and sincerity. Despite intense and grueling cross-examination, they
responded with consistency upon material details that could only come from a firsthand knowledge
of the shocking events which unfolded before their eyes. The Court thus finds no cogent reason to
disregard the findings of the trial court regarding their credibility.

Marlon, Ronald and Leon contend that the trial court committed a reversible error in not giving
credence and probative weight to their evidence to prove their defense of alibi. They aver that their
collective evidence to prove their defense is strong.

We do not agree. Case law has it that the defense of alibi is one of the weakest of defenses in
criminal prosecution because the same is easy to concoct between relatives, friends and even those
not related to the offender.66 It is hard for the prosecution to disprove. For alibi to merit approbation
by the trial court and this Court, Marlon, Ronald and Leon are burdened to prove with clear and
convincing evidence that they were in a place other than the situs criminis at the time of the
commission of the crime; that it was physically impossible for them to have committed the said
crime.67 They failed to discharge their burden. Moreover, Rita and Randy positively and
spontaneously identified Marlon, Ronald and Leon as the culprits. The house of Ronald, where he
claimed he was when the crime was committed, was only two kilometers away from the house of
Modesto and can be negotiated by a tricycle. Leon failed to adduce any documentary evidence to
prove his employment by Sally Asuncion. The barefaced fact that he was a resident of Laoag City
does not constitute proof that he was in Laoag City on the day of the commission of the crime. With
respect to Marlon, he failed to adduce evidence aside from his self-serving testimony that he resided
in, left Dumaguete City and arrived in Manila on January 29, 1999.

The trial court convicted Marlon, Ronald and Leon of murder with the qualifying circumstance of
treachery in the killing of Modesto. The trial court likewise appreciated nighttime and abuse of
superior strength and the use of unlicensed firearms as separate aggravating circumstances. The
Office of the Solicitor General contends that indeed treachery was attendant in the killing of
Modesto. Hence, Marlon, Ronald and Leon are guilty of murder defined in and penalized by Article
248 of the Revised Penal Code.

The Court however finds that Marlon, Ronald and Leon are guilty only of homicide defined in and
penalized by Article 248 of the Revised Penal Code.

Qualifying circumstances such as treachery and abuse of superior strength must be alleged and
proved clearly and conclusively as the crime itself. Mere conjectures, suppositions or presumptions
are utterly insufficient and cannot produce the effect of qualifying the crime. 68 As this Court held: "No
matter how truthful these suppositions or presumptions may seem, they must not and cannot
produce the effect of aggravating the condition of defendant."69 Article 14, paragraph 16 of the
Revised Penal Code provides that there is treachery when the offender commits any of the crimes
against the person, employing means, methods or forms in the execution thereof which tend directly
and especially to insure its execution, without risk to himself arising from the defense which the
offended party might make. For treachery to be appreciated as a qualifying circumstance, the
prosecution is burdened to prove the following elements: (a) the employment of means of execution
which gives the person attacked no opportunity to defend himself or retaliate; (b) the means of
execution is deliberately or consciously adopted.70 Although the victim may have been defenseless
at the time he was seized but there is no evidence as to the particulars of how he was assaulted and
killed, treachery cannot be appreciated against the accused.71 In this case, the victim was
defenseless when seized by Marlon and Ronald. However, the prosecution failed to present any
witness or conclusive evidence that Modesto was defenseless immediately before and when he was
attacked and killed. It cannot be presumed that although he was defenseless when he was seized
the victim was in the same situation when he was attacked, shot and stabbed by the malefactors. To
take advantage of superior strength means to purposely use force that is out of proportion to the
means of defense available to the person attacked.72 What is primordial, this Court held in People v.
Rogelio Francisco73 isthat the assailants deliberately took advantage of their combined strength in
order to consummate the crime. It is necessary to show that the malefactors cooperated in such a
way as to secure advantage from their superiority in strength.74 In this case, the prosecution failed to
adduce evidence that Marlon and Ronald deliberately took advantage of their numerical superiority
when Modesto was killed. The barefaced facts that the malefactors outnumbered Modesto and were
armed while Modesto was not does not constitute proof that the three took advantage of their
numerical superiority and their handguns when Modesto was shot and stabbed. 75

In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and
penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period.

Although the special aggravating circumstance of the use of unlicensed firearms was proven during
the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to
possess the firearm. Lack of license to possess a firearm is an essential element of the crime of
violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating
circumstance in the felony of homicide or murder.76 Neither can dwelling, although proven, aggravate
the crime because said circumstance was not alleged in the Information as required by Rule 110,
Section 8, of the Revised Rules of Court.77 Although this rule took effect on December 1, 2000, after
the commission of the offense in this case, nonetheless it had been given retroactive effect
considering that the rule is favorable to the accused.78

There being no modifying circumstances in the commission of homicide, Marlon, Ronald and Leon
should be meted an indeterminate penalty, the minimum of which shall be taken from the entirety
of prision mayor, ranging from 6 years and one day to 12 years and the maximum period of which
shall be taken from the medium period ofreclusion temporal, ranging from 14 years, 8 months and
one day to 17 years and 4 months.

Consequently, the award for damages in favor of the heirs of the victim should be modified. The sum
of P75,000.00 awarded as moral damages should be reduced to P50,000.00 in accordance with
prevailing jurisprudence.79 The amount of P25,000.00 as exemplary damages is in order.80 In
addition, civil indemnity in the amount of P50,000.00 should be awarded without need of proof,
likewise in consonance with prevailing jurisprudence.81

IN LIGHT OF ALL THE FOREGOING, the decision of the trial court is AFFIRMED with
MODIFICATION. Accused-appellants Marlon Delim, Ronald Delim and Leon Delim are hereby found
guilty beyond reasonable doubt of the felony of Homicide defined in and penalized by Article 249 of
the Revised Penal Code. There being no modifying circumstances in the commission of the crime,
each of accused-appellants is hereby meted an indeterminate penalty of from ten (10) years and one
(1) day of prision mayor in its maximum period as minimum to fourteen (14) years, eight (8) months
and one (1) day of reclusion temporal in its medium period as maximum. Accused-appellants are
hereby ordered to pay, jointly and severally, to the heirs of the victim the amount of P50,000.00 by
way of civil indemnity, the amount of P50,000.00 by way of moral damages and the amount of
P25,000.00 by way of exemplary damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Quisumbing, Carpio, Austria-Martinez,
Corona, Carpio-Morales and Azcuna, JJ., concur.
Vitug, J., see separate opinion.
Ynares-Santiago, J., joins the dissenting opinion of J. Vitug.
Gutierrez, J., joins Justice Vitug in his dissenting opinion.
Separate Opinions

VITUG, J.:

Circumstantial evidence has been defined as that which relates to a series of facts other than the
fact in issue which, by experience, are found to be so associated with such fact that, in relation of
cause and effect, they lead to a veritable conclusion. There should, for circumstantial evidence to
warrant a criminal conviction, be a) more than one circumstance; b) proof of the facts from which the
inference is derived; and c) a clear showing that the combination of all the circumstances can aptly
support a conviction beyond reasonable doubt.1 The use of circumstantial evidence in criminal
cases, prompted by sheer necessity, has long been an accepted, practice but with one important
caveat — it must be used with utmost care and, when its exacting standards are not met, it is
correctly ignored.

On 04 May 1999, the following Information was filed against Marlon, Leon, Manuel, Robert and
Ronald, all surnamed Delim; viz:

"That on or about January 23, 1999 in the evening at Brgy. Bila, Sison, Pangasinan, and
within the jurisdiction of this Honorable Court, the above-named accused armed with short
firearms barged in and entered the house of Modesto Delim and once inside with intent to
kill, treachery, evident premeditation, conspiring with one another, did then and there,
willfully, unlawfully and feloniously grab, hold, hog-tie, gag with a piece of cloth, brought out
and abduct Modesto Delim, (while) accused Leon and Manuel Delim stayed in the house
(and) guarded and prevented the wife and son of Modesto Delim from helping the latter,
thereafter with abuse of superior strength stabbed and killed said Modesto Delim, to the
damage and prejudice of his heirs.

"Contrary to Article 248, Revised Penal Code, as amended by Republic Act No. 7659." 2

The evidence would show that Modesto Delim was forcibly abducted from his residence by
appellants, all armed, on the night of 23 January 1999. But to say that the same group was also
responsible for his death, days later, or that his violent end was the consequence of the abduction,
and nothing more, would be to unduly put to risk our standard of moral certainty required for all
convictions.

It was approximately six-thirty on the evening of 23 January 1999. Three armed men suddenly
barged into the house of Modesto Delim in Brgy. Bila, Sison, Pangasinan. Modesto, who was then
about to take his supper with his wife Rita Manalo Bantas, his teen-age son Randy Manalo Bantas,
and his two grandchildren, was suddenly seized by the intruders. Randy identified the malefactors to
be their neighbors — Marlon, Robert, and Ronald, all surnamed Delim. Without any word, the trio
went straight for Modesto. Randy saw Marlon poke a gun at his father while Ronald and Robert held
back his arms and brought him outside the house. Two more armed cohorts, namely, Manuel and
Leon, both also surnamed Delim, stood guard by the door. No words were uttered to interrupt the
heavy silence except when one of the two men told the stunned family members to stay where they
were. All through the night, both Manuel and Leon Delim kept watch outside the door and only left at
around seven o'clock in the morning of the next day.

Soon after Manuel Delim and Leon Delim had left, Randy immediately sought the help of his Uncle
Darwin Niño who forthwith told him to bring the matter to the authorities. But it was only two days
later that, in the company of his Uncle Melchor, Randy finally reported the incident to the police. In
the meantime, the distressed son scoured the vicinity of Paldit, Pangasinan, to look for his father. He
was nowhere to be found. Days passed. Then, one day, he stumbled upon the decomposing body of
his father at a thick grassy portion of a housing project in Paldit, Sison, Pangasinan, some 200
meters from their house. Dr. Ma. Fe Lagmay de Guzman, who conducted the autopsy, found the
corpse riddled with five fatal gunshot wounds, seven stab wounds and several "defensive" wounds.

The victim's surviving spouse Rita Manalo Bantas and son Randy Manalo Bantas could not
understand why anyone would want Modesto killed. The family was completely unaware of any
possible motive for the nabbing and killing of Modesto Delim or of any bad blood between Modesto
and the five indictees.

On 14 January 2000, the Regional Trial Court of Urdaneta City, Branch 46, rejecting the defense
of alibi, convicted Ronald, Marlon, and Leon for murder; it held:

"WHEREFORE, judgment of conviction beyond reasonable doubt is hereby rendered against

Ronald Delim, Marlon Delim and Leon Delim (for) the commission of Aggravated Murder, an
offense defined and penalized under Article 248 of the Revised Penal Code, as amended by
R.A. 7659 and the Court sentences Marlon Delim, Ronald Delim and Leon Delim to suffer
the penalty of death, to be implemented in the manner as provided for by law; the Court
likewise ordered the accused, jointly and solidarily, to indemnify the heirs of Modesto Delim
the sum of P75,000.00 as moral damages, plus the amount of P25,000.00 as exemplary
damages."3

In assailing the finding of guilt beyond reasonable doubt by the court a quo, appellants stress on
what they claim to be inconsistencies in the testimony of Randy Manalo Bantas and that of Rita
Manalo Bantas. I agree with my colleagues that the trial court has not erred in regarding the so-
called inconsistencies as being minor and trivial that hardly can affect the credibility of the witnesses.
The narration given by Randy Manalo Bantas and Rita Manalo Bantas at the witness stand,
identifying each of the appellants and detailing their individual participation in the incident, could not
have been more spontaneous and straightforward; thus —

Testimony of Randy Manalo Bantas

"Q While taking your supper that time, do you recall if there was anything unusual that
happened at that time?

"A When we were about to start to eat, three armed men entered our house.

"Q Do you know these three armed men who entered your house?

"A Yes, sir.

"Q Who were they, name them one by one.

"A Marlon Delim, Robert Delim and Ronald Delim.

"Q Are these three persons inside the courtroom now?

"A Two of them, sir.

"Q Who are these two who are inside the courtroom?

"A Marlon and Ronald, sir.

xxx xxx xxx

"Q You said that these two armed persons entered your house; what kind of arms were
they carrying at that time?

"A Short handguns, sir.

"Q When these three armed persons whom you have mentioned, armed with short
firearms, what did they do when they entered your house?

"A They took my father, sir.

"Q Who took your father?

"A Marlon Delim, Robert Delim and Ronald Delim, sir.

"Q When these three persons took your father, what did you do then?

"A None, sir.

"COURT:

How did they get your father?

"A They poked a gun and brought him outside the house, sir.

"FISCAL TOMBOC:

Who poked a gun?

"A Marlon Delim, sir.

"xxx xxx xxx

"Q After bringing your father out from your house, what transpired next?

"A Manuel Delim and Leon Delim said, 'Stay in your house,' and guarded us.

"COURT:

You said your father was taken out, who?

"A Marlon, Robert and Ronald, sir.

"FISCAL TOMBOC:
 Where did these three persons bring your father?

"A I do not know where they brought my father, sir.

"COURT:

Was your father taken inside your house or outside?

"A Inside our house, sir.

"Q You said that Marlon poked a gun at your father, is that correct?

"A Yes, sir.

"Q What did Ronald and Robert do while Marlon was poking his gun at your father?

"A Ronald and Robert were the ones who pulled my father out, sir.

"FISCAL TOMBOC:

When your father was pulled out from your house by these three persons, what did
you and your mother do while these three persons were taking your father out of your
house?

"A We did not do anything because Manuel and Leon Delim guarded us.

"xxx xxx xxx

"FISCAL TOMBOC:

What was their appearance that time when these two persons were guarding you,
these Leon and Manuel?

"A They were armed, sir.

"Q What do you mean by armed?

"A They have [a] gun, sir.

"Q What kind of firearm?

"A Short firearm, sir.

"xxx xxx xxx

"FISCAL TOMBOC:

You said that you were guarded by Leon and Manuel, how long did these two
persons guard you in your house?
"A Up to the morning, sir.

"Q You know what time?

"A Yes, sir, [seven o'clock].

"xxx xxx xxx

"Q When [seven o'clock] arrived, you said that they guarded you up to [seven o'clock],
what did these two, Leon and Manuel, do then?

"A They left, sir.

"Q Do you know where they went?

"A No, sir."4

Testimony of Rita Manalo Bantas

"PROSECUTOR TOMBOC

You said during the last hearing that on January 23, 1999 at around 6:30 in the
evening while preparing for your supper three (3) armed men entered inside your
house, who were these three (3) men who entered your house?

"A I know, Marlon, Bongbong and Robert, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC

You said that Marlon Delim, Robert Delim and Bongbong entered your house, are
these three (3) persons who entered your house in Court now?

"A They are here except the other one, sir.

"Q Will you please step down and point to the persons who entered your house?

"A Witness is pointing to Marlon Delim, Robert Delim is not in Court and Bongbong is
Ronald Delim.

"Q After these three (3) armed men entered your house, what happened then?

"A My husband was brought out, sir.

"xxx xxx xxx

"PROSECUTOR TOMBOC
 Who brought your husband out of your house on January 23, 1999 at 6:30 in the
evening?

"A Marion Delim, Bongbong and Robert Delim, sir.

"Q Then after Marlon Delim, Bongbong and Robert Delim brought your husband out
what transpired next?

"A The two (2) stayed at the door of our house to guard us, sir.

"Q Who were these two (2) persons who guarded you?

"A Leon and Manuel, sir.

"xxx xxx xxx

"COURT

You said the two (2) Leon and Manuel stayed at the door guarding you, is that
correct?`

"A Yes, sir.

"Q What made you say that you are guarded by them?

"A Because they have guns with them, sir.

"PROSECUTOR TOMBOC

Do you know what kind of firearm were they holding?

"A I don't know, sir.

"Q But you can describe whether long or short firearm?

"A Short firearms, sir.

"Q What did you do then when these two (2) armed persons guarded you in your
house?

"A We did not do anything because we were afraid, sir.

"COURT

These Leon and Manuel Delim are they known to you prior to that day, January 23,
1999?

"A Yes, sir, I know them.

"Q Why do you know Manuel and Leon prior to January 23, 1999?
"A They are my neighbors, sir.

"Q How about Marlon, Robert and Bongbong do you know them before January 23,
1999?

"A I know them, sir.

"Q Why do you know them?

"A They used to go to our house, sir.

"xxx xxx xxx

"Q You said that Leon and Manuel Delim guarded the door of your house, how long did
they stay there?

"A The whole night up to [seven] o'clock the following morning when they left the house,
sir.

"Q You said they left, do you know where they proceeded?

"A I don't know where they [went], sir.

"Q How about you, what did you do then when the two persons left your house?

"A I stayed at home because I [was] afraid, sir.

"COURT

When the 3 persons brought your husband out did Modesto Delim go with them
voluntarily?

"A No, sir.

"Q Why do you say [that] he did not go voluntarily?

"A Because they held his hand and brought him outside, sir.

"PROSECUTOR TOMBOC

You said they held the hand of your husband, will you please demonstrate how he
was brought outside?

"A They held the 2 hands placed at the back and they brought outside my husband, sir.

"Q Who among the 3 men held the hands of your husband?

"A Marlon, Bongbong and Robert, Sir.

"COURT
 Did your husband resist when they held the hand?

"A He did not resist, Sir."5

Between the positive identification made by the eyewitnesses and the bare denial of appellants,
there is scarcely any serious doubt but that decisive weight must be given to the positive testimony
of Randy Manalo Bantas and Rita Manalo Bantas.6 The defense of alibi, being one that can easily be
fabricated, is inherently weak and cannot be expected to withstand the positive identification made
by credible witnesses.

Randy Manalo Bantas, who was in the house when the five intruders entered their abode and took
his father away, could not have been mistaken in identifying the malefactors who not only were
neighbors but also had family ties with them as well. According to Randy and Rita Manalo Bantas, it
was appellant Leon Delim, together with Manuel Delim (at large), who stood guard at their house
after the others, appellant Marlon Delim, Robert Delim (at large) and appellant Ronald Delim, took
Modesto away on the early evening of 23 January 1999. Leon and Manuel stayed well into the night
and left only at seven o'clock in the morning of the next day. The certificate of residency issued by
the barangay captain of Salet, Laoag City, only confirmed that Leon Delim was a co-resident of the
barangay but it did not establish with any degree of certainty that Leon Delim had not left Laoag City
on the day of the incident. Appellant Ronald Delim, in his case, said that he was home at Asan Norte
with his family when the abduction and the brutal slaying of Modesto Delim occurred. Ronald himself
confirmed, however, that Asan Norte was a mere ten-minute bicycle ride from the victim's house at
Paldit, Pangasinan. Alibi, to be believed, must invariably place the accused at such location as to
render it physically impossible for him to be at the place of the crime and, let alone, to commit the
same. The claim, upon the other hand, of appellant Marlon Delim that he was at Dumaguete City
during the fateful day of 23 to 24 January 1999 remained to be just a bare assertion; it was not
corroborated even by his sister in Dumaguete whom, he said, he worked for.

The evidence would indeed point out that Marlon, Ronald and Robert seized Modesto Delim from his
house while Leon and Manuel stood guard and stayed at the door of the victim's house. Randy
Manalo Bantas and Rita Manalo Bantas, however, could only testify on the participation of each of
the malefactors in the abduction of Modesto Delim but not on what might have happened to him
thereafter. In arriving at its verdict convicting appellants for "aggravated murder," the trial court
considered the act of the accused of forcibly taking Modesto Delim from his house as being likewise
enough to substantiate the killing by them of the victim. The conclusion could rightly be assailed. The
accounts of Randy and his mother Rita would indicate that the forcible taking of Modesto was carried
out in absolute silence, with not one of the five intruders uttering any word which could give a clue on
the reason for the abduction and, more particularly, whether the same was carried out for the
purpose of killing Modesto. The two witnesses were unaware of any existing grudge between the
malefactors and the victim that could have prompted them to violently snuff out the life of the latter.
While the motive of an accused in a criminal case might generally be immaterial, not being an
element of the crime, motive could be important and consequential when the evidence on the
commission of the crime would be short of moral certainty.7

In sustaining the conclusion of the trial court that the five accused also snuffed out the life of
Modesto Delim, theponencia relied on circumstantial evidence testified to by Randy Bantas. He
recounted that, on the early evening of 23 January 1999, Marlon and Ronald barged into the house
of Modesto, each armed with a handgun. Marlon poked his gun on Modesto while Ronald hog-tied
Modesto. They then seized Modesto and herded him out of the house. Leon, armed with a handgun,
acted as a lookout by standing guard by the door of the house of Modesto until seven o'clock in the
morning of the next day. Rita and Randy were ordered by Leon not to leave the house as Ronald
and Marlon left the house with Modesto in tow. On the afternoon of 27 January 1999, the cadaver of
Modesto was found under the thick bushes in a grassy area in the housing project located about 200
meters away from the house of Modesto, exuding bad odor and in a state of decomposition.

The above recitals all point to only one established fact, i.e., that the accused forcibly took Modesto
Delim from his residence to an unknown destination on the night of 23 January 1999, would be
scanty to support a conclusion that the five, aside from abducting the victim, likewise killed him.
There was an unexplained gap in what ought to have been a continuous chain of events. The body
bore several defensive wounds, which could give rise to the not too unlikely scenario that Modesto
might have ultimately been released by his abductors sometime before he was killed.

Recognizing that circumstantial evidence is as strong as the weakest link, this Court is bound not to
ignore all other possibilities.8 It would seem to me that what has instead . been shown and
established beyond reasonable doubt is the guilt of appellants for the crime of kidnapping and
serious illegal detention, the whereabouts of the victim — the immediate consequence of the
abduction — for "more than three days" from the time of his abduction not having been accounted
for. The allegation in the Information that the accused "willfully, unlawfully and feloniously grab(bed),
h(e)ld, hog-tie(d), gag(ged), with a piece of cloth, brought out and abduct(ed) Modesto Delim (while)
Leon Delim and Manuel Delim stayed in the house (and) guarded and prevented the wife and son of
Modesto Delim from helping the latter," constitutes the act of deprivation of liberty and the gravamen
in the crime of kidnapping. Article 267 of the Revised Penal Code, as amended by Republic Act No.
7659, provides:

"Article 267 Kidnapping and serious illegal detention. Any private individual who shall kidnap
or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:

"1 If the kidnapping or detention shall have lasted more than three days.

"2 If it shall have been committed simulating public authority.

"3 If any serious physical injuries shall have been inflicted upon the person kidnapped or
detained; or if threats to kill him shall have been made.

"4 If the person kidnapped or detained shall be a minor, except when the accused is any of
the parents, a female or a public officer.

"The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances abovementioned were present in the commission of the offense.

"When the victim is killed or dies as a consequence of the detention or is raped, or is

subjected to torture or dehumanizing acts, the maximum penalty shall be imposed."

The fact that the Information went further to charge the accused with the killing of the victim should
be of no moment, the real nature of the criminal charge being determined not from the caption or the
preamble of the Information nor from the specification of the law alleged to have been violated —
these being conclusions of law — but by the actual recital of facts in the complaint or information. 9

In meting upon appellants the supreme penalty of death, the trial court has appreciated five
aggravating circumstances of treachery, abuse of superior strength, nighttime, dwelling, and use of
unlicensed firearms. The Information specifies treachery, abuse of superior strength and evident
premeditation as being the aggravating circumstances in the commission of the crime. Treachery
and superior strength, however, only pertain to crimes against persons. The crime of kidnapping,
falling as it does within the classification of crimes against liberty, is aggravated neither by treachery
nor superior strength. The aggravating circumstance of evident premeditation can be appreciated
when it is shown that the culprits have previously reflected on the crime, or that they have prepared
appropriate means to execute it, coolly taking into account its consequences. The evidence is
deficient in this respect. The aggravating circumstances of nighttime, dwelling and use of unlicensed
firearms, not having been alleged in the Information, cannot be considered. The Revised Rules of
Criminal Procedure, rendered effective on 01 December 2000,10 requires aggravating circumstances,
whether ordinary or qualifying, to be specified in the complaint or information.

The crime of kidnapping is punishable by reclusion perpetua to death. There being neither
aggravating nor mitigating circumstance that can be appreciated, the punishment that should be
imposed is the lesser penalty ofreclusion perpetua than the penalty of death.11

Now, on the civil aspect of the case. The law places abundant protective shields in order to ensure
that no man shall be made to account for a crime he might not have committed or be adjudged guilty
and meted a punishment without him having first been afforded a full opportunity to defend his
cause. Thus, a conviction is pronounced only upon proof beyond reasonable doubt, preceded by
an arraignment where he pleads on the basis of a complaint or information that specifies the
gravamen of the offense and the circumstances that are said to aggravate it and then the trial where
evidence is adduced by the parties. For purposes of the civil liability, as well as its extent, civil law
principles, however, are applied, and damages might be accorded to the aggrieved party upon
a mere preponderance of evidence. There is, I believe, enough justification, albeit inadequate for
purposes of a criminal conviction, to hold appellants responsible and civilly liable for the death of
Modesto Delim whose body was found riddled with bullets a few days after being forcibly abducted
by appellants.

Consonantly, appellants should be held liable, jointly and severally, for civil indemnity of P50,000.00
for the death of the victim, moral damages in an equal amount for the mental anguish suffered by his
heirs and P25,000.00 exemplary damages because of the attendance of aggravating circumstances
that were established albeit not allowed to be considered in meting out the sentence for the crime.
Thus, in People vs. Catubig,12 the Court has said:

"The term 'aggravating circumstances' used by the Civil Code, the law not having specified
otherwise, is to be understood in its broad or generic sense. The commission of an offense
has a two-pronged effect, one on the public as it breaches the social order and the other
upon the private victim as it causes personal sufferings, each of which is addressed by,
respectively, the prescription of heavier punishment for the accused and by an award of
additional damages to the victim. The increase of the penalty or a shift to a graver felony
underscores the exacerbation of the offense by the attendance of aggravating
circumstances, whether ordinary or qualifying, in its commission. Unlike the criminal liability
which is basically a State concern, the award of damages, however, is likewise, if not
primarily, intended for the offended party who suffers thereby. It would make little sense for
an award of exemplary damages to be due the private offended party when the aggravating
circumstance is ordinary but to be withheld when it is qualifying. Withal, the ordinary or
qualifying nature of an aggravating circumstance is a distinction that should only be of
consequence to the criminal, rather than to the civil, liability of the offender. In fine, relative to
the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled
meaning of Article 2230 of the Civil Code.
 "Relevantly, the Revised Rules on Criminal Procedure, made effective on 01 December
2000, requires aggravating circumstances, whether ordinary or qualifying, to be stated in the
complaint or information.

"xxx xxx xxx

"A court would thus be precluded from considering in its judgment the attendance of
'qualifying or aggravating circumstances' if the complaint or information is bereft of any
allegation on the presence of such circumstances.

"The retroactive application of procedural rules, nevertheless, cannot adversely affect the
rights of the private offended party that have become vested prior to the effectivity of said
rules. Thus, in the case at bar, although relationship has not been alleged in the information,
the offense having been committed, however, prior to the effectivity of the new rules, the civil
liability already incurred by appellant remains unaffected thereby."

WHEREFORE, I vote for the modification of the decision of the Regional Trial Court, Branch 46, of
Urdaneta City by instead holding appellants Ronald Delim, Marlon Delim and Leon Delim guilty
beyond reasonable doubt of the crime of Kidnapping and Serious Illegal Detention, defined and
penalized by Article 267 of the Revised Penal Code, and imposing on each of them the penalty
of reclusion perpetua, as well as by ordering said appellants to pay, jointly and severally, the heirs of
Modesto Delim the amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and
P25,000.00 exemplary damages, with costs de officio.

Footnotes

1
Penned by Judge Modesto C. Juanson.

2
Records, p. 1.

3
Prosecution presented four witnesses, namely, Rita Bantas, Randy Bantas, Dra. Maria Fe
de Guzman and SPO2 Jovencio Fajarito.

4
Records, Exhibit "C."

5
Records, Exhibits "C" and "C-1."

6
Records, Exhibits "D" and "B."

7
Records, Exhibit "A."

8
Records, Exhibit "E."

9
Records, p. 34.

Accused-appellants testified and presented, as witnesses, Sally Asuncion, Hermelita

10

Estabillo, Estelita Delim and Flor Delim.

11
Records, Exhibit "2."

12
RTC Decision, pp. 9-10; Records, pp. 166-167.

13
Rollo, p. 51.

14
219 SCRA 85 (1993).

15
People v. Puno, et al., supra.

16
In People v. Ancheta, et al., 1 Phil. 165 (1902), it was held that where the victim was
kidnapped by the malefactors and brought to a place where he was killed by another
malefactor, the crime was murder because the primary intention of the malefactors was to kill
him. In People v. Cajayon, et al., 2 Phil. 570, the victim was taken from his house and
brought to another province where he was killed, the Court ruled that the malefactors were
guilty of murder. In People v. Quinto, 82 Phil. 467, the victim was taken by the malefactors
from his house in Floridablanca, Pampanga and brought to Gumain River where he was
killed, this Court held that the crime was murder. In People v. Juan Bulatao, 82 Phil. 743, the
victim was taken from his house and was found dead the following morning, this Court held
that the malefactors were guilty of murder. In People v. Francisco Moreno, 85 Phil. 731, the
victim was taken from his house in Aguilar, Pangasinan and brought to Mangatarem,
Pangasinan where he was killed, we ruled that the offenders were guilty of murder, not
kidnapping.

17
People v. Garland, 627 NE 2d 377.

18
State v. Mundy, 650 NE 2d 502.

19
21 Am Jur 2d, Criminal Law, pp. 214-215.

20
Cupps v. State, 97 Northwestern Reports, 210.

21
Wharton, Criminal Law, Vol. 1, p. 215.

22
People v. Manliguez, et al., 206 SCRA 812 (1992).

23
Records, p. 1.

24
People v. Dramayo, et al., 42 SCRA 59 (1971).

25
Gay v. State, 60 Southwestern Reporter, 771 (1901).

26
Ibid., note 22.

27
Wharton, Criminal Law, Vol. 1, pp. 473-474, citing Lovelady v. State, 14 Tex. App. 545).

28
People v. William Fulinara, et al., 247 SCRA 28 (1995).

29
Records, Exhibit "A."
 Warren v. State, 41 Southern Reporter 2d 201 (1949); State v. Roger, 182 Southwestern
30

Reporter 2d 525 (1949).

31
97 Northwestern Reporter, 210 (1903).

32
Francisco, the Revised Rules of Court of the Philippines, Part II, Vol. VII, 1991 ed.

33
Supra.

34
People v. Elizaga, et al., 23 SCRA 449 (1968).

35
People v. Casingal, et al., 243 SCRA 37 (1995).

36
TSN, Bantas, pp. 4-6, August 18, 1999.

37
TSN, Delim, pp. 2-3, September 21, 1999.

38
Ibid., pp. 7-8, August 18, 1999.

39
TSN, Bantas, pp. 12-13, August 18, 1999.

40
TSN, De Guzman, pp. 5-6, August 16, 1999.

41
Wharton & Stille, Medical Jurisprudence, Vol. III, p. 39.

Casper, Forensic Medicine, cited by Modi, Medical Jurisprudence and Toxicology, 12 ed.,
42

157, p. 134.

43
TSN, Fajarito, pp. 5-6, August 17, 1999.

44
TSN, Delim, p. 5, September 21, 1999.

45
People v. Erardo, 277 SCRA 643 (1997).

46
People v. Valdez, 304 SCRA 611 (1999).

47
Cupps v. State, supra.

48
Article 8, Revised Penal Code.

49
People v. Abordo, et al., 321 SCRA 23 (1999).

50
People v. Naredo, et al., 276 SCRA 489 (1997).

51
People v. Sequiño, et al., 264 SCRA 79 (1996).

52
State v. Carbonne, et al., 91 Atlantic Reporter, A.2d 571.

53
Territory v. Goto, 27 Hawaii 65 (1923).
54
The detention of Rita and Randy in their house was only incidental to the consummation of
the killing of Modesto. Hence Marlon, Ronald and Leon are not liable for serious illegal
detention (United States v. Sol, et al., 9 Phil. 265 (1907).

55
People v. Diaz, et al., 167 SCRA 239 (1988).

People v. Santos, 84 Phil. 97 (1949); People v. Escober, 157 SCRA 541 (1988); People v.
56

Nacional, 248 SCRA 122 (1995).

57
Wharton, Criminal Law, Vol. 1, p. 341.

58
Supra, p. 15; Rollo, p. 65.

59
People v. Estepano, et al., 307 SCRA 701 (1999).

60
People v. Biñas, 320 SCRA 22 (1999).

61
People v. Lucena, 356 SCRA 90, 102 (2001).

62
People v. Dando, 325 SCRA 406, 424 (2000).

63
Francisco, Revised Rules of Court, Part II, Vol. VII, 1991 ed.

64
Supra.

65
People v. De Guzman, 288 SCRA 346 (1998).

66
Naval v. Panday, et al., 275 SCRA 654 (1997).

67
People v. Cañete, et al., 287 SCRA 490 (1998).

68
People v. Garcia, 258 SCRA 422 (1996).

69
United States v. Perdon, 4 Phil. 143 (1905) cited in People v. Torejas, 43 SCRA 158
(1972).

70
People v. Silvestre, 307 SCRA 68 (1999).

71
People v. Durante, 53 Phil. 363 (1929); People v. Amanse, 80 Phil. 424 (1948); People v.
Villaruel, 87 Phil. 826 (1950); People v. Silvestre, supra.

72
Albert's Commentaries on the Revised Penal Code, 1981 ed., Vol. 1, p. 396.

73
234 SCRA 333 (1994).

74
People v. Elizaga, 86 Phil. 365 (1950).

75
People v. Ibañez, Jr., 56 SCRA 210 (1974).

76
People v. Ave, G.R. No. 137274-75, October 18, 2002.
 77
SEC. 8. Designation of the offense. — The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no designation
of the offense, reference shall be made to the section or subsection of the statute punishing
it.

78
People v. Salvador, G.R. No. 132481, August 14, 2002, p. 15.

79
People v. Agunias, et al., 279 SCRA 52 (1997).

80
People v. Catubig, 363 SCRA 621 (2001).

81
People v. Mejares, supra, p. 13.

VITUG, J.:

1
Section 4, Rule 133, Rules of Court

2
Rollo, p. 7.

3
Rollo, p. 9.

4
TSN, Randy Manalo Bantas, 18 August 1999, pp. 4-9.

5
TSN, Rita Delim, 21 September 1999, pp. 2-7.

6
People vs. Lacap, G.R. No. 139114, 23 October 2001.

7
People vs. SPO1 W. Leano, et al., G.R. No. 138886, 09 October 2001.

8
People vs. Tolentino, 166 SCRA 469.

9
People vs. Resayaga, 159 SCRA 426; Oca vs. Jimenez, 5 SCRA 425; U.S. vs. Lin San, 17
Phil 273.

10
People vs. Bragat, G.R. No. 134490, 04 September 2001. Section 8, Rule 110 of the Rules
of Court now provides:

"Sec. 8 Designation of the offense. — The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it."

11
Article 63 of the Revised Penal Code provides —

"Art. 63 Rules for the application of indivisible penalties. — In all cases in which the
law prescribes a single indivisible penalty, it shall be applied by the courts regardless
of any mitigating or aggravating circumstances that may have attended the
commission of the deed.
 "In all cases in which the law prescribes a penalty composed of two indivisible
penalties, the following rules shall be observed in the application thereof:

xxx xxx xxx

"2) when there are neither mitigating nor aggravating circumstances in the
commission of the deed, the lesser penalty shall be applied."

12
23 August 2001.